Landlord-Tenant Law
I. Landlord-Tenant Law Generally
This chapter focuses on the landlord’s judicial and nonjudicial remedies for a tenant’s default under a lease for real property; this chapter does not cover personal property leases.
Practice Note: The Texas Supreme Court has appointed a task force to promulgate plain-language forms for pro se individuals to use in landlord-tenant matters. Courts will be required to accept these forms once they become available to the public. See Tex. Gov’t Code § 22.019; Acts 2015, 84th Leg., R.S., ch. 600, § 1 (S.B. 478), eff. Sept. 1, 2015; Texas Supreme Court, Order Creating Landlord-Tenant Forms Task Force, Misc. Docket No. 17-9046 (May 2, 2017).
A tenant fails to pay rent or other sums due under a lease, fails to comply with a nonmonetary obligation under a lease, or abandons the leased premises; each of these scenarios potentially creates an event of default for which the landlord may exercise judicial or nonjudicial remedies. Before exercising a remedy, the landlord must establish that an event of default has occurred.
An event of default may be monetary or nonmonetary. The type of default and the manner in which it is addressed in the lease will determine the contractual, statutory, prejudgment, or judicial remedies the landlord may seek. Additionally, the type of default may be subject to a grace period or right of the tenant to cure the default. What constitutes an event of default regarding the violation of the payment and nonmonetary obligations of the tenant is governed by the parties’ agreement.
Rent: The lease should have an unequivocal covenant to timely pay rent on or in advance of a specific date. A review of the lease should be conducted to confirm that the tenant’s failure to timely pay rent by a date certain is an unconditional event of default and not subject to demand, notice, and right to cure or other action required of the landlord.
Other Monetary Obligations: Insufficient funds fees and late fees are examples of monetary obligations that are not within the classic definition of rent but are usually subject to a covenant to pay by a date certain, after notice, or after a specified time period.
There are numerous bases on which a landlord may assert a default under the lease that do not arise from the payment of a sum of money. Nonmonetary defaults may or may not be subject to a right of the tenant to cure the default. Examples of typical nonmonetary defaults that may be contractually required of the tenant may include failure to maintain the premises; conduct of residents, occupants, or guests that is in violation of the lease; or criminal conduct.
[Sections 28.4 through 28.10 are reserved for expansion.]
II. Nonjudicial (Self-Help) Remedies
§ 28.11Contractual Landlord’s Liens in Commercial Tenancies
Most commercial leases provide boilerplate language for the imposition of a landlord’s lien. This contractual lien, as opposed to the commercial statutory lien provided in the Texas Property Code, gives the landlord much more latitude. See Bank of North America v. Kruger, 551 S.W.2d 63, 65 (Tex. App.—Houston [1st Dist.] 1977, writ ref’d n.r.e.) (holding that contractual landlord’s liens are subject to provisions of the Uniform Commercial Code but that statutory landlord’s liens are not). Perfection under UCC article 9 may cut off any subsequent creditor’s security interest. See Tex. Bus. & Com. Code §§ 9.301–.343. Once a financing statement is filed, subsequent annual filings are subject to Tex. Bus. & Com. Code § 9.515(a), providing that the filing of a financial statement is good for five years. The landlord’s lien is not satisfied until the landlord’s claim for rent advances and furnishings has been paid. Green v. Scales, 219 S.W. 274, 275 (Tex. App.—Fort Worth 1919, no writ). A tenant cannot free himself or the products of the leased premises unless this is done by contract with the landlord for payment of rent. Forrest v. Durnell, 26 S.W. 481, 482 (Tex. 1894); Granville v. Rauch, 335 S.W.2d 799, 803 (Tex. App.—Austin 1960, no writ). The landlord’s lien is not affected by subletting or assignment of the lease. Forrest, 26 S.W. at 482–83; Mauritz v. Markloff, 268 S.W. 230, 231 (Tex. App.—Galveston 1925, no writ); Green, 219 S.W. at 275; Edwards v. Anderson, 82 S.W. 659, 659–60 (Tex. App.—Austin 1904, no writ). One who has seized property from the leased premises may be held liable by the landlord for the full value thereof or for the amount of debt owed by the tenant and for exemplary damages if he acted with knowledge of the circumstances. Guaranty Bond State Bank of Timpson v. Redding, 24 S.W.2d 457, 461 (Tex. App.—Beaumont 1929, no writ); Ward v. Gibbs, 30 S.W. 1125, 1128 (Tex. App.—Galveston 1895, no writ). To give effect to the landlord’s lien, the landlord is afforded the remedy of foreclosure. Anderson v. Owen, 269 S.W. 454, 455 (Tex. App.—Galveston 1924, no writ). The lien, however, does not attach to property belonging to others that is located on the leased premises. West Development Co. v. Crown Bottling Co., 90 S.W.2d 887, 890 (Tex. App.—Waco 1936, writ dism’d).
In addition to a contractual landlord’s lien in a commercial tenancy, a commercial landlord also has a statutory lien; similarly, an agricultural landlord has a statutory lien. Statutory liens of commercial landlords and agricultural landlords are addressed in section 28.32 below, as enforcement of a statutory lien requires the filing of an application for a distress warrant.
§ 28.11:1Contractual Landlord’s Lien Must Be in Lease
A security interest attaches to the tenant’s personal property pursuant to a landlord’s lien provision in a commercial lease and is subject to article 9 of the Uniform Commercial Code. See Tex. Bus. & Com. Code §§ 1.201(b)(35), 9.109. The lien provision in a commercial lease must expressly convey to the landlord a security interest in the tenant’s personal property. See Bank of North America v. Kruger, 551 S.W.2d 63, 65 (Tex. App.—Houston [1st Dist.] 1977, writ ref’d n.r.e.) (holding that contractual landlord’s liens are subject to provisions of the Uniform Commercial Code but that statutory landlord’s liens are not).
§ 28.11:2Perfection of Commercial Landlord’s Security Interest
A commercial landlord may perfect its contractual security interest in the tenant’s personal property only by either (1) taking possession of the tenant’s personal property described in the lease, without breaching the peace, or (2) filing a financing statement with the Texas Secretary of State. Tex. Bus. & Com. Code §§ 9.313(a), 9.501, 9.609. See Tex. Bus. & Com. Code § 9.502 for financing statement requirements.
§ 28.11:3Foreclosure of Contractual Landlord’s Liens
A landlord may foreclose a contractual landlord’s lien judicially or nonjudicially. A judicial foreclosure is required when the landlord cannot obtain possession of the tenant’s personal property through either self-help or the tenant’s voluntary delivery of the personal property to the landlord.
An agreement to subordinate a landlord’s lien is enforceable; consequently, the practitioner must confirm that the landlord has not executed a subordination agreement in favor of another secured party of the tenant. See, e.g., In re Doctors Hospital 1997, L.P., 351 B.R. 813, 832 n.14 (Bankr. S.D. Tex 2006).
The tenant has a right to redeem the personal property at any time before the landlord has dis-posed of the property by foreclosure sale by tendering to the landlord payment of all obligations secured by the personal property and the reasonable expenses and attorney’s fees of the landlord authorized under Tex. Bus. & Com. Code § 9.615(a)(1). Tex. Bus. & Com. Code § 9.623.
After the tenant’s default, the landlord may sell the tenant’s personal property subject to the landlord’s lien. Tex. Bus. & Com. Code § 9.610(a). Notification of the sale must be delivered to the tenant unless the tenant has waived the right to notification. Tex. Bus. & Com. Code § 9.611(a). Every aspect of the disposition of the personal property, including the method, manner, time, place, and other terms, must be commercially reasonable. If the disposition is commercially reasonable, a secured party may dispose of collateral by public or private proceedings, by one or more contracts, as a unit or in parcels, and at any time and place and on any terms. Tex. Bus. & Com. Code § 9.610(b).
After payment of the rent arrearage, the landlord must deliver any balance of the sale proceeds to the tenant. Myers v. Ginsburg, 735 S.W.2d 600, 605 (Tex. App.—Dallas 1987, no writ).
§ 28.12Contractual Landlord’s Liens in Residential Tenancies
A landlord of a single or multifamily residence has a lien on nonexempt property of the tenant for rent due, but not for other charges. Tex. Prop. Code § 54.041. Note that a lease may provide a formula for allocation of payments received that may result in “rent” remaining unpaid. For in-stance, many standardized leases contain a provision that all payments received by the landlord are applied first to non-rent obligations, then to the rent obligation.
For a residential landlord’s lien to be effective, the lease must have the lien provision under-lined or printed in conspicuous bold print and a provision authorizing the sale or disposition of the property subject to the lien. Tex. Prop. Code §§ 54.043(a), 54.045(a).
A residential landlord may seize only nonexempt property subject to the lien and must do so without a breach of the peace. Tex. Prop. Code § 54.044(a). The residential landlord’s sale of unredeemed property must be for cash to the highest bidder after a minimum thirty-day written notice to the tenant. Tex. Prop. Code § 54.045. A residential landlord’s lien may not be exercised against a tenant of a property financed with tax credits without a court order. Tex. Gov’t Code § 2306.6738(a).
§ 28.13Exclusion (Lockout) of Commercial Tenant
The “exclusion of a commercial tenant,” or “lockout,” is a creature of statute and is governed by Tex. Prop. Code § 93.002. It is primarily used by a landlord as a tool for collection of rent. A lease supersedes Tex. Prop. Code § 93.002 to the extent of any conflict. Tex. Prop. Code § 93.002(h).
A commercial landlord may not intentionally prevent a commercial tenant from entering leased premises except by judicial process unless the exclusion results from (1) bona fide repairs, construction, or an emergency; (2) removing the contents of premises abandoned by a commercial tenant; or (3) changing the door locks of a commercial tenant who is delinquent in paying at least part of the rent. Tex. Prop. Code § 93.002(c).
If a commercial tenant is delinquent in paying at least part of the rent, the landlord may change the door locks and must place a written notice on the tenant’s front door stating the name and address or telephone number of the individual or company from which the new key may be obtained. If the tenant pays the delinquent rent, the landlord must provide a key to the tenant during the tenant’s regular business hours. Tex. Prop. Code § 93.002(f).
If a commercial landlord or a landlord’s agent violates the Texas Property Code and improperly locks out a tenant, the tenant may (1) either recover possession of the premises or terminate the lease and (2) recover from the commercial landlord an amount equal to the sum of the tenant’s actual damages, one month’s rent, or $500, whichever is greater, reasonable attorney’s fees, and court costs, less any delinquent rents or other sums for which the tenant is liable to the landlord. Tex. Prop. Code § 93.002(g).
If the tenant has been locked out of the leased premises illegally, the tenant may recover possession of the premises. See Tex. Prop. Code § 93.003. To regain possession, the tenant must file a sworn complaint seeking reentry with the justice court in the precinct in which the premises are located. The complaint must specify the facts of the unlawful lockout, and the tenant or its representative must also state orally under oath to the justice the facts of the unlawful lock-out. Tex. Prop. Code § 93.003(b). If the tenant has complied with subsection (b) of section 93.003, and the court believes the tenant, the court may issue, ex parte, a writ of reentry that entitles the tenant to immediate and temporary possession of the premises. Tex. Prop. Code § 93.003(c). The writ of reentry must be served on the landlord or the landlord’s management company. Tex. Prop. Code § 93.003(d). The landlord is entitled to a hearing, and the writ of reentry must notify the landlord of its right to a hearing. The hearing is required to be held between the first and not later than the seventh day after the landlord requests a hearing. Tex. Prop. Code § 93.003(e). To avoid a judgment for costs against the landlord, the landlord must request a hearing before the eighth day after service of the writ of reentry. Tex. Prop. Code § 93.003(f). Any party may appeal from the court’s judgment in the same manner as an appeal in a forcible detainer suit. Tex. Prop. Code § 93.003(g). If the court rules that possession should remain with the tenant, a writ of possession is issued superseding the writ of reentry. Tex. Prop. Code § 93.003(h). If the landlord fails to comply with the writ of reentry, the landlord may be held in contempt of court. Tex. Prop. Code § 93.003(i). Upon the landlord’s disobedience of the writ, the tenant may file an affidavit stating the name of the person who is disobedient and describing the act or omission. Upon receipt of the affidavit, the court shall issue a show-cause order. If the court finds disobedience to the writ, it may commit the person to jail without bail until the person purges himself of the contempt in a manner and form as the court may direct. If the landlord obeys the writ before a show-cause order is served, the court may nevertheless still find the person in contempt and assess further punishment. Tex. Prop. Code § 93.003(i).
§ 28.14Exclusion (Lockout) of Residential Tenant
The “exclusion of a residential tenant,” or “lockout,” is solely a creature of statute and is governed by Tex. Prop. Code § 92.0081. It is primarily used by a landlord as a tool for collection of rent; however, the effectiveness of the remedy is limited, as the landlord must provide a key on two hours’ notice, twenty-four hours a day, without the requirement of any rent being tendered.
A residential landlord may not intentionally prevent a tenant from entering leased premises except by judicial process unless the lockout results from (1) bona fide repairs, construction, or an emergency; (2) removing the contents of premises abandoned by a tenant; or (3) changing the door locks on the door to the tenant’s individual unit of a tenant who is delinquent in paying at least part of the rent. Tex. Prop. Code § 92.0081(b).
§ 28.14:2Prerequisites to Exercise of Remedy
The residential landlord’s right to change locks must be included in a written lease. Tex. Prop. Code § 92.0081(d)(1). A residential lease may not waive or exempt a residential landlord from liability or the landlord’s duties under the lockout statute. Tex. Prop. Code § 92.0081(j).
Lockout is available only against tenants; the lockout statute addresses the lockout of a tenant. See Tex. Prop. Code § 92.0081(b). “Tenant” is defined as a person who is authorized by a residential lease to occupy a dwelling to the exclusion of others. Tex. Prop. Code § 92.001(6).
§ 28.14:3Advance Notice Required
The residential landlord must deliver, in advance, written notice of the intent to change the locks. If notice is delivered by mail, delivery must be at least five days before the day the locks are changed. If notice is hand-delivered, delivery must be at least three days before the day on which locks are changed. Tex. Prop. Code § 92.0081(d)(3).
The notice must state—
1.the earliest date that the landlord proposes to change the door locks;
2.the amount of rent the tenant must pay to prevent changing of the door locks;
3.the name and street address of the individual to whom, or the location of the on-site management office at which, the delinquent rent may be discussed or paid during the landlord’s normal business hours; and
4.in underlined or bold print, the tenant’s right to receive a key to the new lock at any hour, regardless of whether the tenant pays the delinquent rent.
Tex. Prop. Code § 92.0081(d)(3).
§ 28.14:4Limitations on Lockout
A residential lockout may not be performed on a day, or a day immediately before a day, the landlord or designated individual is not available or the management office is not open. Tex. Prop. Code § 92.0081(e).
A landlord who performs a lockout on an individual rental unit may not change the locks or otherwise prevent a tenant from entering a common area of residential real property. Tex. Prop. Code § 92.0081(e–1).
Lockouts may not be performed on a dwelling unit when the tenant or any other legal occupant is in the dwelling, more than once during a rental payment period, or on a property financed with tax credits without a court order. Tex. Prop. Code § 92.0081(k); Tex. Gov’t Code § 2306.6738(a).
§ 28.14:5Performing Lockout; Written Notice of Change of Locks
If after delivery of the advance written notice the residential tenant remains delinquent in paying part of the rent, the residential landlord may change the door locks and must place a written notice on the tenant’s front door stating—
1.an on-site location where the tenant may go twenty-four hours a day to obtain the new key or a telephone number that is answered twenty-four hours a day that the tenant may call to have a key delivered within two hours after calling the number;
2.the fact that the residential landlord must provide the new key to the tenant at any hour, regardless of whether the tenant pays any of the delinquent rent; and
3.the amount of rent and other charges for which the tenant is delinquent.
The residential landlord must provide a key within two hours after request of the tenant, twenty-four hours a day, without regard to whether the tenant pays the delinquent rent. Tex. Prop. Code § 92.008(c)(1), (f). If the residential landlord responds to a tenant’s telephone call and the tenant is not present when the landlord arrives with the key, the residential landlord must leave a notice on the front door of the dwelling stating the time the residential landlord arrived with the key and the street address to which the tenant may go to obtain the key during the landlord’s normal office hours. Tex. Prop. Code § 92.0081(g).
§ 28.14:7Tenant’s Remedy; Writ of Reentry
A residential tenant may apply to the justice court to obtain a writ of reentry for wrongful lockout. Tex. Prop. Code § 92.009.
[Sections 28.15 through 28.20 are reserved for expansion.]
§ 28.21Evictions (Suits for Possession)
The forcible detainer and forcible entry and detainer proceedings (“eviction”) are summary, speedy, and inexpensive remedies for the determination of who is entitled to immediate possession of the premises. McGlothlin v. Kliebert, 672 S.W.2d 231, 232 (Tex. 1984) (citing Scott v. Hewitt, 90 S.W.2d 816, 818–19 (Tex. 1936)). The action is not exclusive but is cumulative of any other remedy that a party may have in Texas courts. McGlothlin, 672 S.W.2d at 233; Scott, 90 S.W.2d at 819. An eviction suit does not bar a suit for trespass, damages, waste, rent, or mesne profits. Tex. Prop. Code § 24.008.
For the purposes of considering suits for possession, the right to possession of real property occurs in the following scenarios.
Fee Simple: The owner holds the title in fee simple.
Foreclosure: The owner holds title pursuant to a trustee’s deed.
Contracts for Deed: The owner holds title after default by the purchaser under a contract for deed.
Landlord-Tenant Relationships: Landlord-tenant relationships giving rise to a party’s right to possession are defined b the particular tenancy.
Specific Term: The lease has a primary term with a specific ending date and no reversion to a periodic tenancy. Example: the primary term is from January 1, 2020, to June 30, 2021; the tenancy and right to possession end as a matter of law at midnight, June 30, 2021.
Specific Term with Reversion: The primary term ends but reverts to a periodic tenancy. Example: the primary term is from January 1, 2020, to June 30, 2021, and a lease provision provides that the lease continues month to month thereafter until either party delivers written thirty-day notice of termination before the end of the renewal period. The tenancy ends as a matter of law only after proper advance written notice is delivered by one of the parties.
Tenancy at Will: A tenant at will is one who holds possession of premises by permission of an owner but without a fixed term. Fandey v. Lee, 880 S.W.2d 164, 169 (Tex. App.—El Paso 1994, writ denied). Example: an on-site employee is provided an apartment as part of his compensation package, but the employee’s right to possession of the apartment is expressly contingent on his continued employment.
Tenancy at Sufferance: A tenant at sufferance is one who wrongfully continues in naked possession of property after his right to possession has ceased. ICM Mortgage Corp. v. Jacob, 902 S.W.2d 527, 530 (Tex. App.—El Paso 1994, writ denied); Goggin v. Leo, 849 S.W.2d 373, 377 (Tex. App.—Houston [14th Dist.] 1993, no writ); see also Bockelmann v. Marynick, 788 S.W.2d 569, 571 (Tex. 1990) (holding that tenant who remains in possession of premises after termination of lease for a definite termination occupies “wrongfully” and is tenant at sufferance). Example: a former owner remains in possession after foreclosure.
Holdover: A new tenancy commences when a tenant fails to vacate at the end of a specific term or after expiration of timely notice of termination delivered by either party before the end of the current lease term or renewal period.
Under the common-law holdover rule, a landlord may elect to treat a tenant holding over as either a trespasser or as a tenant holding over under the terms of the original lease. Bockelmann, 788 S.W.2d at 571; Howeth v. Anderson, 25 Tex. 557, 571 (1860). Most standardized leases will include express holdover provisions, for example, “Rent is payable daily prorated over one month at 125% of the monthly rent.”
§ 28.21:2Forcible Entry and Detainer vs. Forcible Detainer
Understanding the distinction between the causes of action for forcible entry and detainer and forcible detainer is critical to the determination of the type and manner of the delivery of the notice to vacate required under Tex. Prop. Code § 24.005 before filing suit. The two causes of action for possession are as follows.
Forcible Entry and Detainer: The party in possession never had a contractual or common-law right of possession. Absent a legally enforceable lease, someone other than the owner who is the occupier of the premises is at best a tenant at sufferance and at worst a trespasser. Fandey v. Lee, 880 S.W.2d 164, 169 (Tex. App.—El Paso 1994, writ denied). Specifically, a person commits a forcible entry and detainer if the person enters the real property of another without legal authority or by force and refuses to surrender possession on demand. Tex. Prop. Code § 24.001(a). Forcible entry is statutorily defined as (1) an entry without the consent of the person in actual possession of the property, (2) an entry without the consent of a tenant at will or sufferance, or (3) an entry without the consent of a person who acquired possession by forcible entry. Tex. Prop. Code § 24.001(b).
Forcible Detainer: A forcible detainer occurs when the party in possession originally had a contractual or common-law right of possession and loses the right to possession by default. By statute, a person who refuses to surrender possession of real property on demand commits a forcible detainer if the person—
1.is a tenant or a subtenant willfully and without force holding over after the termination of the tenant’s right of possession;
2.is a tenant at will or by sufferance, including an occupant at the time of foreclosure of a lien superior to the tenant’s lease; or
3.is a tenant of a person who acquired possession by forcible entry.
A notice to vacate is the statutory condition precedent to the filing of an action for either forcible detainer or forcible entry and detainer. It must be in writing (with one exception), delivered to the premises, and include a specific time deadline for delivery of possession. Tex. Prop. Code § 24.005. Oral notices to vacate may be delivered only to an occupant who obtained possession by forcible entry and detainer under Tex. Prop. Code § 24.001. Tex. Prop. Code § 24.005(d).
Each notice to vacate should include an unequivocal demand for possession of the premises. The content is critical, as the bases articulated in the notice must correspond to the proof at trial. See Jessie v. Jerusalem Apartments, No. 12-06-00113-CV, 2006 WL 3020368, at *3 (Tex. App.—Tyler Oct. 25, 2006, no pet.) (mem. op.); Nealy v. Southlawn Palms Apartments, 196 S.W.3d 386, 390–91 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (notice to vacate merely stated “[o]wner desires possession” and “undesirable tenant behavior”). In the context of federally subsidized housing, federal regulations and due process require the notice to adequately detail the grounds for termination. Moon v. Spring Creek Apartments, 11 S.W.3d 427, 433, 435 (Tex. App.—Texarkana 2000, no pet.) (holding that at trial the court must determine whether the due-process goals for notice have been sufficiently satisfied: (1) adequate notice is provided so as to enable the tenant to prepare a defense; (2) the tenant is allowed to be represented by counsel; (3) the tenant is given an opportunity to present evidence, cross-examine witnesses, and present a defense; and (4) the decision is rendered on the merits). Affordable housing leases subject to HUD regulations may have additional requirements such as (1) contractually defined “good cause,” (2) a ten-day opportunity to “discuss,” (3) the duty to contemporaneously deliver to the public housing agency (i.e., the housing authority who has the contract with the landlord) a copy of a notice to vacate delivered to a Section 8 tenant as required by Part C of a housing assistance payments contract with a public housing agency, (4) Violence Against Women Act notification, and (5) other requirements for the notice to vacate. See, e.g., 34 U.S.C. § 12491 (Violence Against Women Act); 24 C.F.R. § 966.4; United States Department of Housing and Urban Development, Handbook 4350.3, Rev-1, Occupancy Requirements of Subsidized Multifamily Housing Programs ch. 8, para. 8-13-B-2(c)(4), www.hud.gov/sites/documents/43503C8HSGH.PDF. If the lease does not require prior notice and demand for payment, the landlord is not required to make demand for payment before serving a notice to vacate. Santos v. City of Eagle Pass, 727 S.W.2d 126, 128–29 (Tex. App.—San Antonio 1987, no writ). However, a letter advising the tenant that if a default in rent payment is not cured within ten days the landlord will file a forcible entry and detainer suit does not suffice as a notice to vacate if the suit is never filed. Schecter v. Folsom, 417 S.W.2d 180, 182–83 (Tex. App.—Dallas 1967, no writ).
§ 28.21:4Method of Delivery of Notice to Vacate
Tex. Prop. Code § 24.005(f) establishes the method required for delivery of the notice to vacate. The method chosen depends on the cause of action to be pursued and whether the underlying agreement includes the right to recover attorney’s fees and the desire of the plaintiff to recover attorney’s fees at the time of trial; the consideration for the landlord is the additional week’s notice required to perfect the right to recover attorney’s fees at the time of trial when there is no agreement or an agreement is silent about the recovery of attorney’s fees. When the underlying agreement allows for recovery of attorneys’ fees, or there is no agreement for attorneys’ fees and the plaintiff does not intend to recover attorney’s fees, the notice must be delivered (1) in person to the tenant or any person residing at the premises who is sixteen years of age or older, (2) by affixing the notice to the inside of the main entry door of the premises, or (3) by regular mail, registered mail, or certified mail, return receipt requested, to the premises in question. Tex. Prop. Code § 24.005(f). An alternative form of delivery exists if (1) 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 on the inside of the main entry door or (2) the landlord reasonably believes that harm to any person would result from personal delivery to the tenant or a person residing at the premises or from personal delivery to the premises by affixing the notice to the inside of the main entry door. In such a case, the landlord may securely affix the notice on the outside of the main entry door in a sealed envelope on which is written the tenant’s name, address, and “Important Document” or substantially similar language in capital letters, and also must deposit in the mail in the same county in which the premises are located a copy of the notice to the tenant not later than 5:00 p.m. of the same day the notice is posted at the premises. Tex. Prop. Code § 24.005(f–1).
Practice Note: Posting the notice to vacate on the outside of the main entry door under Tex. Prop. Code § 24.005(f–1) has multiple requirements, each of which constitute an element of proof for the landlord to prevail at trial; the practitioner should determine that each element can be established at trial. When there is no agreement for attorney’s fees and the plaintiff seeks to recover attorney’s fees, the notice must be delivered by registered or certified mail, return receipt requested. Tex. Prop. Code § 24.006(a).
Practice Note: The notice-to-vacate statutes complicate the manner in which notices to vacate must be delivered. Tex. Prop. Code § 24.005(f), (f–1). The failure to properly deliver the notice to vacate, particularly when attempting to comply with Tex. Prop. Code § 24.005(f–1), can result in a take-nothing judgment in favor of the tenant if the tenant raises an affirmative defense of insufficient notice. Instead of attempting to comply with the statutory provisions allowing various forms of hand delivery to the premises (and if allowed under the lease), consider simply delivering a five-day (or more) notice to vacate via certified mail, return receipt requested, along with a first-class mail counterpart. This eliminates the myriad of issues of proof regarding hand delivery if compliance with Tex. Prop. Code § 24.005(f–1) is being attempted.
§ 28.21:5Notice Periods for Notices to Vacate
Written Leases: Two time periods are applicable for notices to vacate delivered for the breach of a written lease; the time period is determined by whether the lease includes a provision allowing for the recovery of attorney’s fees and whether attorney’s fees are to be requested at trial.
If the agreement provides for recovery of attorney’s fees, the landlord must give at least three days’ written notice to vacate the premises before filing suit, unless the written lease or agreement provides for a longer or shorter time period. See Tex. Prop. Code §§ 24.005(a), 24.006(b). A longer or shorter notice period expressly agreed to in the lease is controlling. Tex. Prop. Code § 24.005(a). Certain HUD form leases for subsidized housing require a ten-day opportunity for the tenant to discuss the default with the landlord and additional default and notice requirements. Relying on Tex. Prop. Code § 24.005(e), the Fourteenth Court of Appeals has held that the three-day notice period required for a notice to vacate may not run concurrently with the ten-day discussion period required in the HUD lease; the notice must be delivered subsequent to the expiration of the original ten-day discussion period. Kennedy v. Andover Place Apartments, 203 S.W.3d 495, 498 (Tex. App.—Houston [14th Dist.] 2006, no pet.). However, some HUD leases have been revised to now allow the time to run concurrently.
If the lease does not include language entitling the landlord to recover attorney’s fees, and the landlord intends to seek attorney’s fees at the time of trial, the notice must state that if the tenant does not vacate the premises before the eleventh day after receipt of the notice, the landlord may recover attorney’s fees. The demand must be sent by registered or certified mail, return receipt requested, at least ten days before the date suit is filed. Tex. Prop. Code § 24.006(a).
Oral Leases: If the landlord does not intend to seek recovery of attorney’s fees at trial, written notice to vacate must be given at least three days before filing a forcible detainer suit. Tex. Prop. Code § 24.005(a). If the landlord does intend to seek recovery of attorney’s fees, the notice must state that if the tenant does not vacate the premises before the eleventh day after receipt of the notice, the landlord may recover attorney’s fees. The demand must be sent by registered or certified mail, return receipt requested, at least ten days before the date suit is filed. Tex. Prop. Code § 24.006(a).
Tenancies at Will: Two time periods are applicable for notices to vacate delivered to terminate a tenancy at will; the time period is determined by whether attorney’s fees are to be requested at trial. The general notice rule requires a three-day written notice period before filing suit unless the parties have contracted for a shorter or longer notice period in a written lease or agreement. Tex. Prop. Code § 24.005(b). If the lease or agreement does not include language allowing for the recovery of attorney’s fees, and the landlord intends to seek recovery of attorney’s fees at the time of trial, the notice must state that if the tenant does not vacate the premises before the eleventh day after receipt of the notice, the landlord may recover attorney’s fees. The demand must be sent by registered or certified mail, return receipt requested, at least ten days before the date suit is filed. Tex. Prop. Code § 24.006(a).
Tenancies at Sufferance: When the former owner wrongfully retains possession after a foreclosure, and the plaintiff has no intention to seek attorney’s fees, a three-day written notice requirement applies before filing suit unless the parties have contracted for a shorter or longer notice period in a written lease or agreement. Tex. Prop. Code § 24.005(b). If the lease or agreement does not include language allowing for the recovery of attorney’s fees, and the landlord intends to seek recovery of attorney’s fees at the time of trial, the notice must state that if the tenant does not vacate the premises before the eleventh day after receipt of the notice, the landlord may recover attorney’s fees. The demand must be sent by registered or certified mail, return receipt requested, at least ten days before the date suit is filed. Tex. Prop. Code § 24.006(a).
Thirty-day written notice to a residential tenant is required if the purchaser chooses not to continue the lease and the tenant timely pays rent and is not otherwise in default under the tenant’s lease after foreclosure. Tex. Prop. Code § 24.005(b). The tenant is considered to timely pay the rent 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. Tex. Prop. Code § 24.005(b). If the purchaser intends to collect attorney’s fees at trial, the notice must state that if the tenant does not vacate the premises before the eleventh day after receipt of the notice, the landlord may recover attorney’s fees, and the demand must be sent by registered or certified mail, return receipt requested, at least ten days before the date suit is filed. Tex. Prop. Code § 24.006(a).
Holdover: If the landlord does not seek recovery of attorney’s fees at trial, written notice to vacate must be given at least three days before filing a forcible detainer suit unless the parties have contracted for a shorter or longer notice period in a written lease or agreement. Tex. Prop. Code § 24.005(a). If the lease does not include language entitling the landlord to recover attorney’s fees, and the landlord intends to seek attorney’s fees at the time of trial, the notice must state that if the tenant does not vacate the premises before the eleventh day after receipt of the notice, the landlord may recover attorney’s fees. The demand must be sent by registered or certified mail, return receipt requested, at least ten days before the date suit is filed. Tex. Prop. Code § 24.006(a).
The landlord must also comply with the tenancy termination notice requirements of Tex. Prop. Code § 91.001. A monthly tenancy or a tenancy from month to month may be terminated by the tenant or the landlord giving notice of termination to the other. Tex. Prop. Code § 91.001(a). If a notice of termination is given under section 91.001(a) and the rent-paying period is at least one month, the tenancy terminates on the later of (1) the day given in the notice for termination or (2) one month after the day on which the notice is given. Tex. Prop. Code § 91.001(b). If a notice of termination is given under section 91.001(a) and the rent-paying period is less than a month, the tenancy terminates on the later of (1) the day given in the notice for termination or (2) the day following the expiration of the period beginning on the day on which notice is given and extending for a number of days equal to the number of days in the rent-paying period. Tex. Prop. Code § 91.001(c). If a tenancy terminates on a day that does not correspond to the beginning or end of a rent-paying period, the tenant is liable for rent only up to the date of termination. Tex. Prop. Code § 91.001(d).
The tenancy termination notice requirements of Tex. Prop. Code § 91.001(a)–(d) do not apply if the landlord and tenant have agreed in an instrument signed by both parties on a different period of notice to terminate the tenancy or that no notice is required, or there is a breach of contract recognized by law. Tex. Prop. Code § 91.001(e).
Forcible Entry: When no attorney’s fees are sought, oral or written notice to vacate may demand that the party in possession vacate either immediately or by a specified deadline. Tex. Prop. Code § 24.005(d). If the owner intends to seek attorney’s fees at the time of trial, the notice must state that if the tenant does not vacate the premises before the eleventh day after receipt of the notice, the owner may recover attorney’s fees. The demand must be sent by registered or certified mail, return receipt requested, at least ten days before the date suit is filed. Tex. Prop. Code § 24.006(a).
Tenant of a Person Who Acquired Possession by Forcible Entry: When no attorney’s fees are sought, a three-day written notice period applies. Tex. Prop. Code § 24.005(c). If the plaintiff intends to seek attorney’s fees at the time of trial, the notice to vacate must state that if the tenant does not vacate the premises before the eleventh day after receipt of the notice, the plaintiff may recover attorney’s fees. The demand must be sent by registered or certified mail, return receipt requested, at least ten days before the date suit is filed. Tex. Prop. Code § 24.006(a).
Practice Note: The practitioner should make certain that the notice to vacate terminates solely the right to possession; avoid notices that terminate the lease. If a landlord terminates the lease as opposed to solely the right to possession of the premises, the tenant can take the position that all duties of the tenant, including the duty to maintain the premises in good condition, are terminated.
[Sections 28.22 through 28.25 are reserved for expansion.]
§ 28.26New Rules for Justice Courts
The supreme court adopted new rules of procedure for justice courts effective August 2013; these rules of procedure now appear in the 500 to 510 series. Texas Supreme Court, Final Approval of Rules for Justice Court Cases, Misc. Docket No. 13-9049 (Apr. 15, 2013), 76 Tex. B.J. 440 (2013). See also Acts 2011, 82d Leg., 1st C.S., ch. 3, §§ 5.02, 5.07 (H.B. 79), eff. Jan. 1, 2012; Acts 2013, 83d Leg., R.S., ch. 2, §§ 1, 3 (H.B. 1263), eff. Sept. 1, 2013. The application of the new rules of procedure and rules of evidence for eviction are found in Tex. R. Civ. P. 500.3, Application of Rules in Justice Court Cases.
§ 28.27Trial Procedure Generally
An eviction case is a lawsuit brought to recover possession of real property under chapter 24 of the Texas Property Code. The owner or any authorized agent may represent the owner in justice court. Tex. R. Civ. P. 500.4; Tex. Prop. Code § 24.011.
A claim for rent may be joined with an eviction case if the amount of rent due and unpaid is not more than $10,000, excluding statutory interest and court costs but including attorney’s fees, if any. Eviction cases are governed by rules 500–507 and 510 of part V of the Texas Rules of Civil Procedure. To the extent of any conflict between rule 510 and the rest of part V, rule 510 applies. Tex. R. Civ. P. 500.3(d).
The other Rules of Civil Procedure and the Rules of Evidence do not apply except when the judge hearing the case determines that a particular rule must be followed to ensure that the proceedings are fair to all parties or when otherwise specifically provided by law or the rules. Tex. R. Civ. P. 500.3(e).
The filing deadlines of the parties in Tex. R. Civ. P. 510 no longer follow the mailbox rule; if a document is filed by mail and not received by the court by the due date, the court may take any action authorized by the rules, including issuing a writ of possession requiring a tenant to leave the property. Tex. R. Civ. P. 510.2.
The justice court in the precinct in which the real property is located has exclusive original jurisdiction for eviction suits. Tex. Gov’t Code § 27.031(a)(2); Tex. Prop. Code § 24.004. “An insufficient description [of the property] in the complaint in forcible entry and detainer is not such a defect as to deprive the court of jurisdiction. The complaint can be amended in the Justice of the Peace Court.” Family Investment Co. of Houston v. Paley, 356 S.W.2d 353, 355–356 (Tex. App.—Houston 1962, writ dism’d). The limited concurrent probate court jurisdiction of repealed Texas Probate Code section 5A(b) did not directly carry over to the new Texas Estates Code; however, Tex. Est. Code § 32.001(b) may still vest some jurisdiction in the probate court for an eviction relating to an estate: “A probate court may exercise pendent and ancillary jurisdiction as necessary to promote judicial efficiency and economy.” It is well settled in Texas that justice courts have exclusive jurisdiction over suits for possession unless the determination of title is required to determine the issue of possession. See McGlothlin v. Kliebert, 672 S.W.2d 231, 232–33 (Tex. 1984); Rice v. Pinney, 51 S.W.3d 705, 709 (Tex. App.—Dallas 2001, no pet.). The merits of title are not adjudicated in justice courts. Tex. R. Civ. P. 510.3(e).
Certain allegations of an issue with title will not divest the justice court of jurisdiction in a suit for possession. For example, defaults leading to foreclosure under deeds of trust having language to the effect that if the property is sold under deed of trust the prior owner becomes a tenant at will or tenant at sufferance will not divest the court of jurisdiction. Dormady v. Dinero Land & Cattle Co., L.L.C., 61 S.W.3d 555, 558–59 (Tex. App.—San Antonio 2001, pet. dism’d w.o.j.) (deed of trust provision stated: “If any of the property is sold under this deed of trust, [prior owner] shall immediately surrender possession to the purchaser. If [prior owner] fails to do so, [prior owner] shall become a tenant at sufferance of the purchaser, subject to an action for forcible detainer.”); see also Falcon v. Ensignia, 976 S.W.2d 336, 338 (Tex. App.—Corpus Christi–Edinburg 1998, no pet.) (“Justice courts may adjudicate possession even where issues related to the title of real property are tangentially or collaterally related to possession.”). Likewise, a justice court will not be divested of jurisdiction when a wrongful foreclosure proceeding is pending in district court after nonjudicial foreclosure sale after default under a deed of trust. Rice, 51 S.W.3d at 713 (holding that when deed of trust had tenant-at-sufferance reversion language, a justice or county court is not deprived of jurisdiction by existence of a title dispute but is deprived of jurisdiction only if “the right to immediate possession necessarily requires the resolution of a title dispute”) (quoting Haith v. Drake, 596 S.W.2d 194 (Tex. App.—Houston [1st Dist.] 1980, writ ref’d n.r.e.). A justice court will also not be divested of jurisdiction in defaults under contracts for deed that include language to the effect that after default the purchaser becomes a tenant at sufferance or tenant at will. See Martinez v. Daccarett, 865 S.W.2d 161, 163–64 (Tex. App.—Corpus Christi–Edinburg 1993, no writ).
On the other hand, other kinds of allegations of title issues will divest the justice court of jurisdiction in a suit for possession; for example, defaults under contracts for deed that do not include language to the effect that “after default, purchaser becomes a tenant at will or tenant at sufferance.” Ward v. Malone, 115 S.W.3d 267, 271 (Tex. App.—Corpus Christi–Edinburg 2003, pet. denied); Aguilar v. Weber, 72 S.W.3d 729, 735 (Tex. App.—Waco 2002, no pet.). Likewise, a justice court will be divested of jurisdiction when it is necessary to determine the existence of a marital life estate in the real property at issue. Fernandez v. Mendoza, No. 05-03-01680-CV, 2005 WL 110349, at *2–3 (Tex. App.—Dallas Jan. 20, 2005, pet. denied).
A justice court does not have jurisdiction in a forcible entry and detainer or forcible detainer suit and must dismiss if the defendant files a sworn statement alleging that the suit is based on a deed executed in violation of chapter 21A of the Texas Business and Commerce Code. Tex. Prop. Code § 24.004(b).
Practice Note: If a temporary restraining order issues to enjoin a suit for possession and resolution of a title dispute is not necessary to determine the issue of possession, the attorney should consider immediately moving for dissolution of the temporary restraining order under Tex. R. Civ. P. 680. Cf. Breceda v. Whi, 224 S.W.3d 237, 240 (Tex. App.—El Paso 2005, orig. proceeding) (injunction issued to prevent landlord from disturbing quiet enjoyment of tenant but expressly carving out from effect of injunction the right of landlord to prosecute forcible detainer action was proper).
Mandatory venue is in the justice precinct in which all or part of the premises are located. Tex. Civ. Prac. & Rem. Code § 15.084. If the petition is filed in the wrong precinct, the court must dismiss the case; the plaintiff will not be entitled to a refund of the filing fee but will be refunded any service fees paid if the case is dismissed before service is attempted. Tex. R. Civ. P. 510.3(b).
The allegations of the complaint must be sworn to. Tex. R. Civ. P. 510.3(a). The complaint must include—
1.the name of the plaintiff;
2.the name, address, telephone number, and fax number, if any, of the plaintiff’s attorney, if applicable, or the address, telephone number, and fax number, if any, of the plaintiff;
3.the name, address, and telephone number, if known, of the defendant;
4.the amount of rent due and unpaid at the time of filing and within the jurisdictional limits of the court and the amount of money, if any, the plaintiff seeks;
5.the basis for the plaintiff’s claim against the defendant, including the facts and grounds for eviction, and when the eviction is based on a written residential lease the plaintiff must name all tenants obligated under the lease whom the plaintiff seeks to evict;
6.a statement about whether the plaintiff consents to e-mail service of the answer and any other motions or pleadings;
7.a description, including the address, if any, of the premises that the plaintiff seeks possession of;
8.a description of when and how the notice to vacate was delivered; and
9.a statement that attorney’s fees are being sought, if applicable.
Tex. R. Civ. P. 502.2, 510.3. The complaint must list all home and work addresses of the defendant known to the plaintiff and must state that the plaintiff knows of no other home or work addresses of the defendant in the county where the premises are located to support a judgment based on substituted service. Tex. R. Civ. P. 510.4(c). Since Tex. R. Civ. P. 510.4(c) contemplates a defendant having more than one home address, it is reasonable to require a plaintiff relying on substituted service to state that it knows that a defendant is currently living somewhere other than on the leased premises before obtaining a judgment based on substituted service by delivery to the leased premises. Thomas v. Olympus/Nelson Property Management, 148 S.W.3d 395, 400 (Tex. App.—Houston [14th Dist.] 2004, no pet.) (holding that service under former concomitant Tex. R. Civ. P. 510.4(c) would not support default judgment when sworn complaint failed to list hospital address where tenant was receiving inpatient treatment).
Additional bases for a suit for possession are found in the statute describing acts of the landlord that do not constitute retaliation. An eviction or lease termination based on the following circumstances, which are valid grounds for eviction or lease termination in any event, does not constitute retaliation:
1.the tenant is delinquent in rent when the landlord gives notice to vacate or files an eviction action;
2.the tenant, a member of the tenant’s family, or a guest or invitee of the tenant intentionally damages property on the premises or by word or conduct threatens the personal safety of the landlord, the landlord’s employees, or another tenant;
3.the tenant has materially breached the lease, other than by holding over, by an action such as violating written lease provisions prohibiting serious misconduct or criminal acts, except as provided by this section;
4.the tenant holds over after giving notice of termination or intent to vacate;
5.the tenant holds over after the landlord gives notice of termination at the end of the rental term and the tenant does not take action for retaliation until after the landlord gives notice of termination; or
6.the tenant holds over and the landlord’s notice of termination is motivated by a good-faith belief that the tenant, a member of the tenant’s family, or a guest or invitee of the tenant might (a) adversely affect the quiet enjoyment by other tenants or neighbors; (b) materially affect the health or safety of the landlord, other tenants, or neighbors; or (c) damage the property of the landlord, other tenants, or neighbors.
See form 28-14 in this chapter for a suit on sworn complaint.
§ 28.27:5May Join Suit for Rent
A suit for rent may be joined with an action for forcible entry and detainer whenever the suit for rent is within the jurisdiction of the justice court and must be brought in the county and precinct in which all or part of the property is located. Tex. Civ. Prac. & Rem. Code § 15.091; Tex. R. Civ. P. 510.3(b), (d). Late fees, “insufficient funds” fees, and other amounts due under the lease may not be included in the suit for possession.
Practice Note: Some leases include provisions that all payments received may be applied first to nonrent monetary obligations and then to rent. When representing the landlord, the attorney should determine whether the landlord’s accounting practices and the lease allow the “carry” of a rent obligation. When representing the tenant, review the provisions of the lease and petition to determine whether the landlord is entitled to the amounts requested.
Practice Note: When representing the landlord, the prayer in the petition should always request all rent due as of the date of judgment.
Practice Note: A lease provision providing that the full month’s rent is due and owing on the first of the month should not be prorated through the day of trial unless a written lease provides otherwise. When representing the landlord and a court attempts to prorate the rent to the date of the hearing, the attorney should vigorously argue that—
1.a judgment for possession will not become final for five days and is subject to appeal for trial de novo;
2.if a writ of possession must issue and be served for the plaintiff to obtain possession, it could take up to three additional weeks during which the tenant will continue to have possession; and
3.the client has a contractual right to the full month of rent as of the rental due date under the lease.
Practice Note: If rent through the date of judgment would exceed the maximum jurisdictional limits of the justice court (currently $10,000), the best practice is to plead an express reservation of the right to seek rents due in a court of competent jurisdiction.
Practice Note: If a landlord loses an eviction suit, has joined a suit for rent, and then fails to appeal, the tenant can take the position that res judicata applies and the take-nothing judgment against the landlord created a waiver of all rent due through the time of judgment. Since the joinder of a suit for rent is optional, a landlord may elect not to take the risk of losing rent with an adverse ruling, particularly if there are notice or fact issues making the landlord’s burden of proof at trial problematic. In fact, some landlords no longer include rent with the eviction suit, as there may be additional delinquent amounts due and owing on the tenant’s account (e.g., late fees, insufficient funds fees, damages to the premises) that the landlord will send to collections after the tenant surrenders the unit.
§ 28.27:6Request for Immediate Possession after Trial; Bond
In exigent circumstances, the party filing the suit for possession may file an immediate possession bond under the provisions of Tex. R. Civ. P. 510.5. The sole benefit to a plaintiff filing an immediate possession bond is the right to the issuance of a writ of possession on the date of trial but only if the defendant fails to appear or file a written answer and a judgment for possession is rendered by default. Tex. Prop. Code § 24.0061(b); Tex. R. Civ. P. 510.5.
The bond may be filed at any time before the final judgment in a forcible detainer action; however, the defendant must have seven days’ notice of the filing of the bond before a writ of possession issues. Tex. R. Civ. P. 510.5(a), (c).
The bond must be in an amount to be approved by the judge in the probable amount of costs of suit and damages that may result to the defendant in the event that the suit has been improperly instituted and be conditioned that the plaintiff will pay the defendant all costs and damages that are adjudged against the plaintiff. Tex. R. Civ. P. 510.5(a). The court must notify the defendant that the plaintiff has filed a possession bond in the same manner as service of citation; the notice must inform the defendant that if the defendant does not file an answer or appear for trial, and judgment for possession is granted by default, an officer will place the plaintiff in possession of the property on or after the seventh day after the date the defendant is served with the notice. Tex. R. Civ. P. 510.5(b). The court may grant immediate possession only after a bond for possession is filed and timely served after the defendant fails to answer or appear for trial and a default judgment for possession issues. Tex. Prop. Code § 24.0061(b); Tex. R. Civ. P. 510.5(c).
Practice Note: If the practitioner intends to file an immediate possession bond, always file it with the petition.
After filing the sworn complaint, the justice of the peace is required to immediately issue citation directed to each defendant. Tex. R. Civ. P. 510.4. The citation must—
1.be styled “The State of Texas”;
2.be signed by the clerk under seal of court or by the judge;
3.contain the name, location, and address of the court;
4.state the date of filing of the petition;
5.state the date of issuance of the citation;
6.state the file number and the names of the parties;
7.state the plaintiff’s cause of action and relief sought;
8.be directed to the defendant;
9.state the name and address of the attorney for the plaintiff, or if the plaintiff does not have an attorney, the address of the plaintiff;
10.state the date the defendant must appear in person for trial at the court issuing citation, which must not be less than ten days nor more than twenty-one days after the petition is filed;
11.notify the defendant that if the defendant fails to appear in person for trial, judgment by default may be rendered for the relief demanded in the petition;
12.inform the defendant that, upon timely request and payment of a jury fee no later than three days before the day set for trial, the case will be heard by a jury;
13.contain all warnings required by chapter 24 of the Texas Property Code; and
14.include the following statement: “For further information, consult Part V of the Texas Rules of Civil Procedure, which is available online and also at the court listed on this citation.”
Personal service of citation is required by Tex. R. Civ. P. 510.4(b)(2). Alternative service by delivery to the premises is allowed when the constable, sheriff, or other person authorized by written court order is unsuccessful in serving the citation under Tex. R. Civ. P. 510.4(b); the petition lists all home and work addresses of the defendant that are known to the plaintiff (e.g., if a tenant is incarcerated, the petition must include the address of the place of incarceration) and states that the plaintiff knows of no other home or work addresses of the defendant in the county where the premises are located; and the constable, sheriff, or other person authorized files a sworn statement that it has made diligent efforts to serve such citation on at least two occasions at all addresses of the defendant in the county where the premises are located, stating the times and places of attempted service. Tex. R. Civ. P. 510.4(c)(1). A judge must promptly consider a sworn statement filed under Tex. R. Civ. P. 510.4(c)(1) and determine whether citation may be served by delivery to the premises. The plaintiff is not required to make a request or motion for alternative service. Tex. R. Civ. P. 510.4(c)(2).
If the judge authorizes service by delivery to the premises, the constable, sheriff, or other person authorized by written court order must, at least six days before the day set for trial, (1) deliver a copy of the citation with a copy of the petition attached to the premises by placing it through a door mail chute or slipping it under the front door; if neither method is possible, the officer may securely affix the citation on the front door or main entry to the premises; and (2) deposit in the mail a copy of the citation with a copy of the petition attached, addressed to defendant at the premises and sent by first-class mail. Tex. R. Civ. P. 510.4(c)(3). The constable, sheriff, or other person authorized by written court order to deliver citation must note on the return of service the date the citation was delivered and the date it was deposited in the mail. Tex. R. Civ. P. 510.4(c)(4); see also Tex. Prop. Code § 24.0051(a) (referring to the predecessor to Tex. R. Civ. P. 510.4; see Texas Supreme Court, Final Approval of Rules for Justice Court Cases, Misc. Docket No. 13-9049 (Apr. 15, 2013), 76 Tex. B.J. 440 (2013)).
§ 28.27:8Defendant’s Pleadings
The defendant should always file a written answer, including a general denial. Notwithstanding Tex. R. Civ. P. 500.3(e), which provides that other rules of procedure and evidence do not apply, the defendant should always consider filing additional defensive pleadings since the court may determine that a particular rule must be followed “to ensure that the proceedings are fair to all parties.” These include the following.
Plea to the Jurisdiction: Although a plea to the jurisdiction can be raised for the first time on appeal, the best practice is to raise the issue in the trial court. See Waco I.S.D. v. Gibson, 22 S.W.3d 849, 850 (Tex. 2000) (orig. proceeding). Two of the most common pleas to the jurisdiction in response to a suit for possession are title disputes (claims that determination of title is necessary for resolution of the right to possession) and claims that the premises in question are not in the justice precinct in which the case is filed. See Tex. Gov’t Code § 27.031(a)(2); Tex. Prop. Code § 24.004; Tex. R. Civ. P. 510.3(b).
Motion to Transfer Venue: A traditional Tex. R. Civ. P. 86 motion to transfer venue is not the appropriate vehicle if all or part of the premises at issue are not in the justice court precinct in which the suit for possession was filed. In that event, the court must dismiss the matter for lack of jurisdiction. See Tex. Civ. Prac. & Rem. Code § 15.084; Tex. R. Civ. P. 510.3(b).
If a party in justice court believes it cannot get a fair trial before a specific judge and files a sworn motion to that effect supported by the sworn statement of two other credible persons, change is mandatory. Tex. R. Civ. P. 502.4(e).
On the written consent of all parties or their attorneys, filed with the court, venue must be transferred to the court of any other justice of the peace of the county, or any other county. Tex. R. Civ. P. 502.4(f). Caveat: The use of this procedure in an eviction case may create a jurisdictional issue unless the new court sits in the precinct where all or part of the premises are located.
Motion to Abate: A motion to abate is used to prevent the plaintiff’s case from going forward on the pleadings until the plaintiff corrects the defect. Martin v. Dosohs I, Ltd., 2 S.W.3d 350, 354 (Tex. App.—San Antonio 1999, pet. denied). It must be verified. Sparks v. Bolton, 335 S.W.2d 780, 785 (Tex. App.—Dallas 1960, no writ). The two most common bases for abatement are that the plaintiff has no assumed name certificate (or an incorrect or expired certificate) and that the Servicemembers Civil Relief Act applies.
If the plaintiff has no, or an incorrect or expired, assumed name certificate on file, it cannot prosecute an action in the courts of Texas. Tex. Bus. & Com. Code § 71.201; Sixth RMA Partners v. Sibley, 111 S.W.3d 46, 55 (Tex. 2003).
Where the Servicemembers Civil Relief Act applies, at any time after the filing of the suit for possession, the court, the servicemember, or someone on behalf of the servicemember, for premises occupied or intended to be occupied primarily as a residence and for which the monthly rent does not exceed $2,400 (as adjusted for inflation after 2003), may move the court for a stay of the proceedings on the grounds that the servicemember’s ability to pay the rent is materially affected by military service. On such application, the court must stay the proceedings for a period of ninety days unless, in the opinion of the court, justice and equity require a longer or shorter period of time, or adjust the obligation under the lease to preserve the interests of all parties. 50 U.S.C. § 3951.
Death of Defendant: A suggestion of death should be filed. Thereafter, the clerk is to issue a scire facias to the representative of the estate to appear and defend. Tex. R. Civ. P. 152.
Bankruptcy of Defendant: A suggestion of bankruptcy should be filed.
Jury Demand: Request must be made at least three or more days before the trial date, and the party demanding the jury must pay the jury fee. Tex. R. Civ. P. 510.7(b).
Special Exceptions: The defendant, even if he is pro se, should specially except to defects in the plaintiff’s pleadings, or the defects are waived. Tex. R. Civ. P. 90; Moore v. Sieber, No. 06-06-00030-CV, 2006 WL 3290895, at *1 (Tex. App.—Texarkana Nov. 21, 2006, no pet.) (mem. op.).
Special Denials: The defendant should file verified denials if there is a misnomer, the plaintiff has no legal capacity to sue, the plaintiff is not entitled to recover in the capacity in which the plaintiff sues, there is a defect of parties, or any other ground under Tex. R. Civ. P. 93.
§ 28.27:9Defendant’s Affirmative Defenses
Even though the new rules of procedure in eviction cases in justice court are limited to rule 510, the defendant may attempt to affirmatively plead affirmative and avoidance defenses it may have or the court, on objection, should disallow the defendant from introducing evidence on the defense. Tex. R. Civ. P. 94. Because the only issue to be decided is whether the landlord or the tenant is entitled to have possession of the premises, questions of legal title to the property, fraud, negligence, deceptive trade practices, and other theories of law not relating to the question of possession are not properly asserted in an eviction proceeding.
The defendant in one eviction proceeding offered as a defense proof of the following facts: the property owners had entered into an oral contract to sell the property to the occupants, the occupants had entered into possession of the property and made valuable improvements to it, the owners were attempting to perpetrate a fraud on the occupants through a forcible detainer suit, and the owners had filed the suit in retaliation for the occupants having brought a disciplinary proceeding against the owners’ son, who was an attorney. The court of appeals held that these questions had no relevancy to the question in the forcible detainer suit of which party had the right to immediate possession of the premises, and evidence pertaining to those affirmative defenses was inadmissible in that suit. Fandey v. Lee, 880 S.W.2d 164, 169–70 (Tex. App.—El Paso 1994, writ denied).
The most common affirmative defenses to a suit for possession are the following.
Insufficient Notice: The landlord failed to expressly comply with all the notice-to-vacate requirements under Tex. Prop. Code § 24.005.
Payment: The defendant includes an account stating distinctly the nature of the payments and the payments made. Tex. R. Civ. P. 95.
Release; Estoppel; Waiver: Where the appellant housing authority entered into a new lease two days after it perfected appeal by filing an appeal bond, the housing authority waived the right to sue for possession. Joseph v. Beaumont Housing Authority, 99 S.W.3d 765, 766 (Tex. App.—Beaumont 2003, no pet.) (per curiam).
Most standard commercial leases contain a nonwaiver clause. In such cases the contract controls, and acts of the landlord may not constitute a waiver of any other covenants the tenant is required to perform. In Shields Ltd. Partnership v. Bradberry, 526 S.W.3d 471, 475 (Tex. 2017), the court held that a party by its conduct may waive a nonwaiver clause but that engaging in the very conduct disclaimed as a basis for waiver is insufficient as a matter of law to nullify a nonwaiver provision. Absent such a paragraph, a landlord should be aware that only slight acts on his part may waive his right to enforce the lease. See G.C. Murphy Co. v. Lack, 404 S.W.2d 853, 858–59 (Tex. App.—Corpus Christi–Edinburg 1966, writ ref’d n.r.e.). If the landlord has notice of a breach of the lease, any recognition by the landlord of the continued tenancy of the tenant will have the effect of a waiver of the landlord’s right to terminate the lease. The refusal of the landlord to accept timely tender of rent may constitute a waiver of the landlord’s right to declare the lease in default unless there is a new breach. Harris v. Ware, 93 S.W.2d 598, 599–600 (Tex. App.—Waco 1936, writ ref’d). The landlord who accepts rent from a tenant after full notice of a breach of a covenant or condition in the lease for which a forfeiture might have been demanded waives his right to declare a forfeiture for the breach until a new breach occurs. Theophilakos v. Costello, 54 S.W.2d 203, 205 (Tex. App.—Waco 1932, no writ). The right to terminate a lease for failure to make payments when due is waived by assurances from the landlord that the tenant need not worry about timely payments. Ada Oil Co. v. Logan, 447 S.W.2d 205, 209 (Tex. App.—Houston [14th Dist.] 1969, no writ). The landlord’s acceptance of partial payment of rent does not necessarily preclude his right to terminate the lease. Jowell v. Pearsall, 331 S.W.2d 514, 515 (Tex. App.—Texarkana 1959, no writ). Acceptance of rent for the premises after taking proper legal steps to terminate the lease for cause is not a waiver of the landlord’s right to repossess the premises unless the facts show an intent to waive. Crawford v. Texas Improvement Co., 196 S.W. 195, 197 (Tex. App.—El Paso 1917, writ dism’d). A landlord who has been very indulgent in allowing rents to become overdue cannot be precluded from terminating the lease. McCray v. Kelly, 130 S.W.2d 458, 462 (Tex. App.—Galveston 1939, writ dism’d).
Retaliation: See Tex. Prop. Code § 92.335.
Failure of Condition Precedent: An example is the failure to deliver the prior notification when the plaintiff uses a conditional notice to vacate with a right to cure by payment. See Tex. Prop. Code § 24.005(i).
Fair Housing Act Violation: See 42 U.S.C. §§ 3601–3631; Tex. Prop. Code §§ 301.001–.171.
Usury: Though often attempted as a defense by tenants, usury does not apply to real property leases because the lease is not for the retention or forbearance of money. Apparel Manufacturing Co., Inc. v. Vantage Properties, Inc., 597 S.W.2d 447, 449 (Tex. App.—Dallas 1980, writ ref’d n.r.e.). The court held that a lease transaction is not a lending transaction and therefore does not meet the definition of usury. In River Oaks Shopping Center v. Pagan, 712 S.W.2d 190, 192 (Tex. App.—Houston [14th dist.] 1986, writ ref’d n.r.e.), the court found that all rent due under the lease was incurred at the time of the execution of the lease and the subsequent rental payments were merely the time in which the tenant had to repay it.
Deceptive Trade Practices: In a commercial lease there exists an implied warranty that the premises are suitable for their intended commercial purposes. Davidow v. Inwood North Professional Group—Phase I, 747 S.W.2d 373, 377 (Tex. 1988). The Davidow court held that the tenant’s obligation to pay rent and the landlord’s implied warranty of suitability are mutually dependent. That is, a breach of the warranty authorizes an abatement of rent. Davidow, 747 S.W.2d at 377. See Tex. Prop. Code §§ 92.052, 92.056 for a landlord’s duty to repair in residential lease contexts.
Covenant of Quiet Enjoyment: Most leases provide an express covenant of quiet enjoyment of the premises. If the lease does not provide it, the law implies such a covenant. The covenant, then, is best defined as one in which the tenant shall not be evicted or disturbed by the lessor. In Goldman v. Alkek, 850 S.W.2d 568, 570–72 (Tex. App.—Corpus Christi–Edinburg 1993, no writ), the court held that the landlord breached the covenant of quiet enjoyment when the landlord made demands for additional amounts of money not required by the lease, the tenant paid the additional amounts, and the landlord attempted to terminate the lease, because such an action would sufficiently show that actions of the landlord hindered the tenant and his occupation in the enjoyment of the leased premises.
By virtue of the covenant of quiet enjoyment, a legal duty has been found on the part of the landlord to protect the tenant from disturbance that may be created by the acts of tenants of an adjoining portion of the building. Maple Terrace Apartment Co. v. Simpson, 22 S.W.2d 698, 700 (Tex. App.—Texarkana 1929, no writ).
Constructive Eviction: Constructive eviction is an intentional act or omission of the landlord permanently depriving a tenant, without his consent, of the use and beneficial enjoyment of the premises or any substantial part thereof so that the tenant abandons the premises. Hoover v. Wukasch, 274 S.W.2d 458, 460 (Tex. App.—Austin 1955, writ ref’d n.r.e.). Constructive eviction has been defined as having four distinct elements: (1) intent on the landlord’s part that the tenant no longer enjoy the premises, (2) a material act by the landlord substantially interfering with the use and enjoyment of the premises for the purpose for which they were let, (3) an act that permanently deprives the tenant of the use and enjoyment of the premises, and (4) an abandonment of the premises by the tenant within a reasonable time of the commission of the act. Briargrove Shopping Center v. Vilar Joint Venture, Inc., 647 S.W.2d 329, 334 (Tex. App.—Houston [1st Dist.] 1982, no writ). The landlord’s intent may be inferred from the circumstances. Lazell v. Stone, 123 S.W.3d 6, 12 (Tex. App.—Houston [1st Dist.] 2013, pet. denied) (changing locks and informing commercial tenant that she is not welcome on property was evidence of intent to constructively evict). Cf. Quitta v. Fossati, 808 S.W.2d 636, 643 (Tex. App.—Corpus Christi–Edinburg 1991, writ denied) (landlord’s threat to “get the sheriff” was not evidence of constructive eviction). A tenant cannot complain that the landlord constructively evicted him when the eviction results from the actions of third parties acting without the landlord’s authority or permission; the act or omission complained of must be that of the landlord. Fidelity Mutual Life Insurance Co. v. Kaminsky, 768 S.W.2d 818, 820, 822 (Tex. App.—Houston [14th Dist.] 1989, no writ) (landlord is not responsible for actions of third parties when landlord does not permit third party to act; act or omission complained of must be that of landlord and not merely of third party acting without landlord’s authority or permission).
The proper measure of general damages for wrongful eviction of a tenant by a landlord is the difference between the market rental value of the leasehold for the unexpired term of the lease and stipulated rentals. It is the object and purpose of the law to compensate a tenant who has been wrongfully evicted from the premises for the actual loss sustained. This does not include special damages, such as lost profits. Briargrove Shopping Center, 647 S.W.2d at 336.
Texas law relieves tenants of contractual liability for any remaining rentals due under the lease if they can establish constructive eviction by the landlord. Downtown Realty v. 509 Tremont Building, Inc., 748 S.W.2d 309, 312 (Tex. App.—Houston [14th Dist.] 1988, no writ). A landlord’s acts or omissions can form the basis of a constructive eviction. See Steinberg v. Medical Equipment Rental Services, Inc., 505 S.W.2d 692, 677 (Tex. App.—Dallas 1974, no writ).
Persistent requests for past-due rent in the presence of customers does not meet the legal requirements of constructive eviction. Stillman v. Youmans, 266 S.W.2d 913, 916 (Tex. App.—Galveston 1954, no writ). Intention on the part of the landlord that the tenant no longer enjoy the premises can be presumed from the surrounding circumstances. Richker v. Georgandis, 323 S.W.2d 90, 98 (Tex. App.—Houston 1959, writ ref’d n.r.e.). Leasing to a competitor of the tenant is not constructive eviction. Sherrer v. Sparks, 78 S.W.2d 1035 (Tex. App.—San Antonio 1935, no writ). Removing trade fixtures can be a constructive eviction. Stephens v. Anderson, 275 S.W.2d 869, 871 (Tex. App.—Austin 1955, writ ref’d n.r.e.). Sending a default letter demanding payment of rent is not constructive eviction. Weissberger v. Brown-Bellows-Smith, Inc., 289 S.W.2d 813, 817 (Tex. App.—Galveston 1956, writ ref’d n.r.e.). If the lease calls for written notice to the landlord before the landlord has the duty to make repairs, and the tenant fails to give written notice, the tenant cannot rely on the landlord’s failure to make the repairs as constructive eviction. Hoover v. Wukasch, 274 S.W.2d 458, 460 (Tex. App.—Austin 1955, writ ref’d n.r.e.). An eviction is not established where it appears that the tenant vacated the premises voluntarily or left for reasons other than the conduct of the landlord. Nabors v. Johnson, 51 S.W.2d 1081, 1082 (Tex. App.—Waco 1932, no writ); Ogus, Rabinovich & Ogus Co. v. Foley Bros. Dry Goods Co., 252 S.W. 1048, 1052 (Tex. Comm’n App. 1923).
Termination: If the landlord elects to terminate a lease because of some default by the tenant, the landlord may not recover future rentals from the lease. Glasscock v. Console Drive Joint Venture, 675 S.W.2d 590, 592 (Tex. App.—San Antonio 1984, writ ref’d n.r.e.). This case is interesting in that it was submitted on an agreed statement of facts. The landlord stipulated in open court that the exhibits were true and correct copies of the instruments and to the truth of the matters contained in them. One of the exhibits was the landlord’s verified petition for forcible detainer, which contained a statement consistent with the lease agreement that the landlord may exercise the option to terminate the lease. The landlord lost its future rentals claim.
A tenant cannot unilaterally terminate a lease absent a breach of the landlord. Abandonment by the tenant does not terminate a contract. Stubbs v. Stuart, 469 S.W.2d 311, 312–13 (Tex. App.—Houston [14th Dist.] 1971, no writ). In Crawford v. Haywood, 392 S.W.2d 387, 389 (Tex. App.—Corpus Christi–Edinburg 1965, no writ), the court held that mere abandonment and declaration of intention not to pay rent does not abrogate the landlord’s rights under the lease. Suing under the lease for rents is an affirmation of the lease. Meehan v. Pickett, 463 S.W.2d 481, 484 (Tex. App.—Beaumont 1971, writ ref’d n.r.e.).
A tenant vacating the leased premises has a duty to notify the landlord of its departure. Until notification is effective and terminates the tenancy, the tenant remains in legal possession of the premises and is responsible for damages to the leasehold. Flores v. Rizik, 683 S.W.2d 112, 116 (Tex. App.—San Antonio 1984, no writ).
Surrender of a lease held by the tenant and acceptance of possession by the landlord ordinarily releases the tenant from liability for rents that would thereafter accrue. Whether there has been an acceptance by the landlord that releases the tenant from further obligations under the lease involves determining the intent of the parties. Southmark Management Corp. v. Vick, 692 S.W.2d 157, 159 (Tex. App.—Houston [1st Dist.] 1985, writ ref’d n.r.e.). A landlord, of course, can agree to release a tenant from liability under a lease. Franchise Stores Realty Corp. v. Dakri, 721 S.W.2d 397, 398 (Tex. App.—Houston [1st Dist.] 1986, no writ); but see Schecter v. Folsom, 417 S.W.2d 180, 182–83 (Tex. App.—Dallas 1967, no writ) (letter advising tenant that if tenant did not cure default and payment of rent within ten days landlord would file forcible entry and detainer suit did not constitute notice by landlord that lease was forfeited when suit was never filed).
Election of Remedies: Generally, the filing of a forcible detainer suit or the removal of a tenant is not an election of remedies. See McHaney v. Hackleman, 347 S.W.2d 822, 826–27 (Tex. App.—San Antonio 1961, writ ref’d n.r.e) (“[T]he law is well settled that the mere institution of suit, which is not prosecuted to judgment, or the application for a remedy, does not constitute an election of remedies, unless the litigant has received some benefit or his opponent has suffered some loss or detriment.”); but see Carter v. Long, 455 S.W.2d 812 (Tex. App.—Texarkana 1970, writ ref’d n.r.e.) (landlord’s action of filing forcible detainer suit had effect of evicting tenant from premises, and by landlord’s action of eviction, he terminated lease by retaking possession of premises; those acts constituted an election of remedies in that landlord elected to terminate agreement and retake exclusive possession rather than seek remedies under agreement).
Disposal of Property or Conversion (Commercial Tenancies): Tex. Prop. Code § 93.002(e) gives the commercial landlord the right to remove and store any abandoned property of the tenant that remains on the premises. In addition to the commercial landlord’s other rights, the landlord may dispose of the property sixty days after the date the property is stored. To do this, the landlord must deliver, by certified mail to the tenant at the tenant’s last known address, a notice stating that the landlord may dispose of the tenant’s property if the tenant does not claim the property within sixty days of the date the property is stored. Tex. Prop. Code § 93.002(e).
In Wilson v. Moore, 122 S.W. 577, 579 (Tex. App. 1909, no writ), the court held that conversion of the tenant’s property was not found because the tenant was requested to take the property. The tenant voluntarily left the property and the landlord did not make any claim on or assume any ownership over it. In Alsbury v. Linville, 214 S.W. 492, 495 (Tex. App.—San Antonio 1919, writ dism’d w.o.j.), the court held that landlords are authorized to take possession of the premises upon abandonment by tenants.
Landlords taking possession of abandoned premises are required to safely care for the property left at the premises by the tenant. When a landlord, upon abandonment of the premises, retook possession to remove personal belongings of the tenant without intent to appropriate the belongings and so held the property subject to the tenant’s order, he was not guilty of conversion of the belongings. See American Cotton Co-op Ass’n v. Plainview Compress & Warehouse Co., 114 S.W.2d 689 (Tex. App.—Amarillo 1938, writ dism’d). The court held that one who is rightfully in possession of property, although the legal title thereto may be in another, is not guilty of conversion. To establish allegations of conversion it must be shown that the person charged unlawfully exercised dominion and control over the property of another to the exclusion of the exercise of the right of possession by the owner or some other person entitled to its possession. American Cotton Co-op Ass’n, 114 S.W.2d at 692–94. Assuming a valid initial taking of the property by the landlord, it is well settled that there is a corresponding obligation on the part of the landlord to safely care for such property and keep it for the benefit of the owner until the demanded rent has been paid. Johnson v. Lane, 524 S.W.2d 361, 364 (Tex. App.—Dallas 1975, no writ). In Prewitt v. Branham, 643 S.W.2d 122, 123 (Tex. 1982), the supreme court held that where there was a forged signature on a lease agreement for realty, there could be a conversion of the document in which the rights were conferred.
In forcible detainer suits the landlord, in removing a tenant’s property after a successful suit, has no duty to protect or store the property of the tenant. When the tenant was served with process and notice to vacate the premises, the notice required that the tenant remove the person and the personal property. When the tenant failed to remove property as required under a forcible detainer suit, the tenant placed its property at risk. Conroy v. Manos, 679 S.W.2d 124, 126 (Tex. App.—Dallas 1984, writ ref’d n.r.e.).
Time of the Essence: Generally in contracts, and specifically in real estate transactions, time is not of the essence unless the express agreement of the parties makes it so. When time is not of the essence a contract need not necessarily be performed precisely at the agreed time. A party has a reasonable time in which to perform the contract. Montgomery v. Montgomery, 99 S.W. 1145, 1147 (Tex. App.—Dallas), aff’d, 105 S.W. 38 (Tex. 1907). When time is of the essence in a contract, a party must perform or tender performance in literal compliance with the provisions about time to avoid a forfeiture or to entitle him to enforce a contract in a suit for specific performance. Heffington v. Gillespie, 176 S.W.2d 205, 211–12 (Tex. App.—Fort Worth 1943, no writ); see also Maxwell v. Lake, 674 S.W.2d 795 (Tex. App.—Dallas 1984, no writ). Language clearly showing an intention that time be of the essence is required to be in the contract. See Nicholason v. Whyte, 236 S.W. 770, 773 (Tex. App.—Dallas 1921, no writ). However, where time is of the essence as expressly shown in the contract, such performance may be extended by the parties’ waiver of strict compliance. Hage v. Westgate Square Commercial, 598 S.W.2d 709, 711 (Tex. App.—Waco 1980, writ ref’d n.r.e.). The waiver may be shown by parol evidence or course of dealing. Hage, 598 S.W.2d at 712. Most lease contracts contain time-is-of-the-essence clauses.
Failure of Consideration: In conjunction with a breach of the covenant of quiet enjoyment or a breach of warranty of suitability, tenants can plead a failure of consideration. Failure of consideration occurs when, because of some supervening cause after an agreement is reached, the promised performance fails. Suttles v. Thomas Bearden Co., 152 S.W.3d 607 (Tex. App.—Houston [1st Dist.] 2004, no pet.). Failure of consideration may result as a consequence of fraud, mutual mistake, or failure of one party to perform its obligation under an agreement that the purported property is not what it was represented by the buyer. 14 Tex. Jur. 3d Contracts § 107. However, breach of a covenant in a contract for the sale of land will not necessarily amount to a failure of consideration. Lozano v. Meyers, 8 S.W.2d 785, 787 (Tex. App.—San Antonio 1928), aff’d, 18 S.W.2d 588 (Tex. Comm’n App. 1929).
Exercising Option to Renew: Exercise of an option to renew, unless excused in rare cases of equity, must be unqualified, unambiguous, and strictly in accordance with the terms of the agreement. Zeidman v. Davis, 342 S.W.2d 555, 558 (Tex. 1961); Meadows v. Midland Super Block Joint Venture, 255 S.W.3d 739, 743 (Tex. App.—Eastland 2008, no pet.). Generally, when a contract requires only that one party notify the other, and the matter is not defined in the contract, notice occurs when it is mailed. Brown v. Swift-Eckrich, Inc., 787 S.W.2d 599, 600 (Tex. App.—El Paso 1990, writ denied). But see Meadows, 255 S.W.3d at 743–45 (where lease required that renewal notice in form of next month’s rent check for month-to-month lease be received by first day of the month, renewal was untimely, even though it had been accepted in this fashion for fourteen years).
Trial in an eviction case must not be postponed for more than seven days unless both parties agree in writing. Tex. R. Civ. P. 510.7(c).
The issues to be adjudicated at trial in a forcible-detainer proceeding are—
1.possession—the right to actual possession;
2.rent—the amount of delinquent rent due at the time of judgment (if pleaded);
3.attorney’s fees—the attorney’s fees incurred by the plaintiff; and
4.court costs—court costs.
Tex. Prop. Code § 24.006(b); Tex. R. Civ. P. 510.8.
In a forcible-entry-and-detainer proceeding, the plaintiff has the burden to prove the additional element that the defendant “entered the real property of another without legal authority or force.” Yarto v. Gilliland, 287 S.W.3d 83, 87 n.3 (Tex. App.—Corpus Christi–Edinburg 2009, no pet.).
The plaintiff must prove facts corresponding to the bases stated in the notice to vacate delivered to the defendant. Nealy v. Southlawn Palms Apartments, 196 S.W.3d 386, 395 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (where notice to vacate listed “owner desires possession” and “undesirable tenant behavior” as grounds, proof that defendant loitered on the premises, police responded to two assault incidents at defendant’s unit, defendant rode a four-wheeler in pedestrian area of the apartments, and that there were two police reports that defendant “mooned” other tenants and maintenance personnel did not fit into the grounds stated in the notice to vacate and defendant properly objected). The failure to object to the introduction of facts outside the provisions of the notice to vacate results in trial by consent in a suit for possession. Torres v. Corpus Christi Housing Authority, No. 13-04-00591-CV, 2006 WL 2168086, at *2 (Tex. App.—Corpus Christi–Edinburg Aug. 3, 2006, no pet.) (mem. op.).
Counterclaims and the joinder of suits against third parties are not permitted in an eviction case, Tex. R. Civ. P. 510.3(d), however, attorney’s fees for defending possession may be awarded on appeal to county court. Tex. R. Civ. P. 510.11.
§ 28.28:1Selected Issues at Trial
No Innocent Tenant Defense in Publicly Subsidized Housing: A public housing agency may, in its discretion, evict a tenant for drug-related activity whether or not tenant knew, or should have known, about the activity as there is no exception in 42 U.S.C. § 1437d(l)(6) for innocent tenants. Department of Housing and Urban Development v. Rucker, 535 U.S. 125, 130–31 (2002).
Lease/Purchase Contracts: After a tenant exercises an option to purchase in a “lease/purchase contract,” Texas Property Code chapter 92 no longer applies to the lease and the contract is then treated as an executory contract under Tex. Prop. Code §§ 5.061–.086. Tex. Prop. Code § 5.0621(b).
Forty-Nine-Day Period between Notice to Vacate after Foreclosure and Filing of Suit for Possession Not Unreasonable: After foreclosure sale, a forty-nine-day period between the notice to vacate and the filing of the suit for possession is not unreasonable where there is no testimony that there was a lease between the parties and that rent was paid. See Potter v. Mullen, No. 05-04-00014-CV, 2005 WL 1316122, at *3 (Tex. App.—Dallas June 3, 2005, pet. denied).
Interpreters: By failing to object to proceeding without an interpreter, a party waives the right to challenge the issue on appeal. Martinez v. Cherry Avenue Mobile Home Park, 134 S.W.3d 246, 248–50 (Tex. App.—Amarillo 2003, no pet.).
Proof in Foreclosure Suits for Possession: Certified copies of trustee’s deed and deed of trust establishing a landlord-tenant relationship after foreclosure and written notice to vacate establish the right to possession as a matter of law. Mortgage Electronic Registration Systems v. Knight, No. 09-04-452 CV, 2006 WL 510338, at *4 (Tex. App.—Beaumont Mar. 2, 2006, no pet.) (mem. op.).
If the judgment is in favor of the plaintiff, the judge must render judgment for possession of the premises, costs, delinquent rent as of the date of entry of the judgment, if any, and attorney’s fees if recoverable by law. Tex. R. Civ. P. 510.8(b). If the judgment or verdict is in favor of the defendant, the judge must render judgment against the plaintiff for costs and attorney’s fees if recoverable by law. Tex. R. Civ. P. 510.8(c). A judgment in a proceeding for forcible detainer does not have res judicata effect with respect to other issues related to the lease other than the right to immediate possession of the property. Buttery v. Bush, 575 S.W.2d 144, 146 (Tex. App.—Tyler 1978, writ ref’d n.r.e.); see also McGlothlin v. Kliebert, 672 S.W.2d 231, 233 (Tex. 1984) (“The forcible entry and detainer action is not exclusive, but cumulative, of any other remedy that a party may have in the courts of this state.”); Aguilar v. Weber, 72 S.W.3d 729, 732 (Tex App.—Waco 2002, no pet.) (“[F]orcible detainer actions in justice court may be brought and prosecuted concurrently with suits to try title in district court.”); Dormady v. Dinero Land & Cattle Co., L.L.C., 61 S.W.3d 555, 558 (Tex. App.—San Antonio 2001, pet. dism’d w.o.j.) (“[P]arties may pursue both a forcible detainer action in justice court and a suit to quiet title in district court.”).
Each judgment in a nonpayment-of-rent case involving residential property must include a finding of the amount of rent due by the tenant for each rental pay period during an appeal, and, where a portion of rent is paid by a government agency, the portion of rent paid by the tenant and the portion of the rent paid by the government agency. Tex. Prop. Code § 24.0053(a).
If an eviction case is based on nonpayment of rent and the tenant’s rent during the rental agreement term has been paid wholly or partly by a government agency, either party may contest the portion of the rent that the justice court determines must be paid into the county court registry by the tenant under Tex. Prop. Code § 24.0053. The contest must be filed on or before the fifth day after the date the justice signs the judgment. If a contest is filed, not later than the fifth day after the date the contest is filed the justice court shall notify the parties and hold a hearing to determine the amount owed by the tenant in accordance with the terms of the rental agreement and applicable laws and regulations. After hearing the evidence, the justice court shall determine the portion of the rent that must be paid by the tenant under Tex. Prop. Code § 24.0053. Tex. Prop. Code § 24.0053(c). If the tenant objects to the court’s ruling, the tenant must pay into the court registry only the portion of the rent the tenant claims to be due until the issue is decided de novo at the hearing on the merits in county court or upon the landlord’s motion to reconsider in county court. Tex. Prop. Code § 24.0053(d).
Leases usually provide for reasonable attorney’s fees for enforcing a lien or collecting delinquent rent. Also, Tex. Civ. Prac. & Rem. Code § 38.001 allows for recovery of attorney’s fees in suits based on contract. For a discussion of attorney’s fees, see chapter 31 in this manual.
§ 28.28:4No Motion for New Trial
No motions for new trial are allowed. Tex. R. Civ. P. 510.8(e). The erroneous filing of a motion for new trial does not extend the time period for appeal. RCJ Liquidating Co. v. Village, Ltd., 670 S.W.2d 643, 644 (Tex. 1984) (per curiam).
An appeal is perfected when a bond, cash deposit, or sworn statement of inability to pay is timely filed. Tex. R. Civ. P. 510.9(f). The bond, cash deposit, or sworn statement of inability to pay must be filed with the justice court within five days after the judgment is signed. Tex. R. Civ. P. 510.9(a). The failure to timely file an appeal bond is jurisdictional. State v. Jones, 220 S.W.3d 604, 608 (Tex. App.—Texarkana 2007, no pet.).
The judge is to set the amount of the bond to be filed or cash deposit to be made to include the damages accruing during the appeal (rents), attorney’s fees, and court costs. Tex. R. Civ. P. 510.9(b), 510.11. The rules no longer promulgate a form of bond; under former and now repealed Tex. R. Civ. P. 750, the supreme court had promulgated a form that may still be accepted by many courts:
The State of Texas, County of __________
Whereas, upon a writ of forcible entry (or forcible detainer) in favor of A.B., and against C.D., tried before __________, a Justice of the Peace of __________ County, a judgment was rendered in favor of A.B. on the ___ day of ___, a.d., and against the said C.D., from which the C.D. has appealed to the county court; now therefore, the said C.D. and his sureties, covenant that he will prosecute his said appeal with effect and pay all costs and damages which may be adjudged against him, provided the sureties shall not be liable in an amount greater than $____, said amount being the amount of the bond herein.
Given under our hands this ____ day of ____, a.d.
Signature of Principal
Signatures of Sureties
Tex. R. Civ. P. 750, repealed 2013. See Texas Supreme Court, Final Approval of Rules for Justice Court Cases, Misc. Docket No. 13-9049 (Apr. 15, 2013), 76 Tex. B.J. 440 (2013). Other courts may require specific affidavits of the sureties listing nonexempt property subject to execution. Within five days of the filing of the bond or cash deposit, the appellant must serve notice of the appeal via hand delivery, mail, courier with receipt, fax, e-mail if the party consented to service by e-mail, or any other method authorized by the court. Tex. R. Civ. P. 510.9(d), 501.4. Failure to serve notice of the filing of the appeal bond is not jurisdictional. Mitchell v. Armstrong Capital Corp., 877 S.W.2d 481, 481–82 (Tex. App.—Houston [14th Dist.] 1994, no writ).
A defective appeal bond vests jurisdiction in the county court subject to amendment of the bond. Family Investment Co. of Houston v. Paley, 356 S.W.2d 353, 355 (Tex. App.—Houston 1962, writ dism’d). A bond may be contested by the same procedure as in a sworn statement of inability to pay; see the following paragraphs.
Sworn Statement of Inability to Pay: In addition to perfecting the tenant’s appeal, the filing of a sworn statement of inability to pay perfects the right of the tenant to remain in possession of the leased premises during the pendency of the appeal. See Tex. Prop. Code § 24.0054(a–3); Tex. R. Civ. P. 510.9(c)(5)(B). In nonpayment-of-rent cases in which a sworn statement of inability to pay is filed, the tenant has the additional requirement to deposit into the court registry the amount of the tenant’s monthly rent on a regular basis. Tex. Prop. Code § 24.0053(a–3), (b). The justice court must make available a blank form of the sworn statement of inability to pay for the use of an appealing tenant. Tex. Prop. Code § 24.0052(b).
The affidavit must contain—
1.the tenant’s identity;
2.the nature and amount of the tenant’s employment income;
3.the income of the tenant’s spouse, if applicable and available to the tenant;
4.the nature and amount of any government entitlement income of the tenant;
5.all other income of the tenant;
6.the amount of available cash and funds available in savings or checking accounts of the tenant;
7.real and personal property owned by the tenant;
8.the tenant’s debts and monthly expenses;
9.the number and age of the tenant’s dependents and where those dependents reside; and
10.the following statement: “I am unable to pay court fees. I verify that the statements made in this statement are true and correct.”
Tex. Prop. Code § 24.0052(a); Tex. R. Civ. P. 510.9(c), 502.3(b).
The court must promptly notify all other parties of the filing of a sworn statement of inability to pay, Tex. Prop. Code § 24.0052(c), no later than the next business day. Tex. R. Civ. P. 510.9(d). A landlord may contest the sworn statement of inability to pay on or before the fifth day after the date the affidavit is filed. If the landlord contests the affidavit, the justice court shall notify the parties and hold a hearing to determine whether the tenant is unable to pay the costs of appeal or file an appeal bond. The hearing shall be held no later than the fifth day after the date the landlord notifies the court clerk of the landlord’s contest. At the hearing, the tenant has the burden to prove by competent evidence, including documents or credible testimony of the tenant or others, that the tenant is unable to pay the costs of appeal or file an appeal bond. Tex. Prop. Code § 24.0052(d).
If the justice court approves the affidavit, the tenant does not have to pay the filing fee of the county court or file an appeal bond to perfect the appeal. Tex. Prop. Code § 24.0052(e). If the justice court disapproves the affidavit, the tenant may, within five days, appeal the disapproval to the county court for resolution. The county court must set the hearing within five days and hear the contest de novo. If the affidavit is approved by the county court, the court must direct the justice court to transmit to the county clerk the transcript, records, and papers of the case. Tex. R. Civ. P. 510.9(c)(3). If the county court disapproves the affidavit, the tenant may still perfect the appeal by posting an appeal bond or making a cash deposit within one business day. Tex. R. Civ. P. 510.9(c)(4).
Practice Note: When representing the landlord, the attorney should consider not contesting the affidavit of inability to pay as it will inordinately delay final judgment.
Once an appeal is perfected, the judge must stay all further proceedings on the judgment and must immediately send to the clerk of the county court a certified copy of all docket entries, a certified copy of the bill of costs, and the original papers in the case together with any money in the court registry, including the sums deposited after the filing of the sworn statement of inability to pay. Tex. R. Civ. P. 510.10(a).
Payment of Filing Fee in County Court: If a bond or cash deposit was filed to perfect the appeal, the appellant must pay the filing fee in county court within twenty days of notification that the transcript was received; otherwise the appeal is deemed not perfected and the transcript and file documentation is returned to the justice court, which may proceed as though no appeal had been perfected. Tex. R. Civ. P. 143a. If an affidavit of inability to pay is not contested or is otherwise approved after being contested by the landlord, no filing fee is due in the county court.
Practice Note: A tenant/appellant may file an appeal bond solely to extend his right to possession and then fail to pay the filing fee in county court to extend that right for the twenty days that Tex. R. Civ. P. 143a allows. When representing the landlord, the attorney should consider immediately paying the filing fee and immediately set the trial de novo in county court.
§ 28.29:2Tenant’s Right to Maintain Possession during Appeal
If the appeal was perfected on the basis of an appeal bond, the tenant is entitled to maintain possession of the property during the appeal.
Appeal Based on Sworn Statement of Inability to Pay: If the breach is for nonpayment of rent and the tenant has appealed by filing a sworn statement of inability to pay, the justice court must provide to the tenant a written notice at the time the sworn statement of inability to pay is filed that contains the following information in bold or conspicuous type:
1.the amount of the initial deposit of rent, equal to one rental period’s rent under the terms of the rental agreement, that the tenant must pay into the justice court registry;
2.whether the initial deposit must be paid in cash, cashier’s check, or money order, and to whom the cashier’s check or money order, if applicable, must be made payable;
3.the calendar date by which the initial deposit must be paid into the justice court registry, which must be within five days of when the sworn statement of inability to pay was filed; and
4.a statement that failure to pay the required amount into the justice court registry may result in the court issuing a writ of possession without hearing.
Tex. Prop. Code § 24.0053; Tex. R. Civ. P. 510.9(c)(5)(A).
A tenant who files a sworn statement of inability to pay is entitled to stay in possession of the premises during the pendency of the appeal by complying with the following procedure:
1.Within five days of the date that the tenant/appellant files a sworn statement of inability to pay, the tenant/appellant must pay into the justice court registry the amount set forth in the notice provided at the time the tenant/appellant filed the statement.
2.During the appeal process as rent becomes due under the rental agreement, the tenant/appellant must pay the designated amount into the court registry within five days of the rental due date under the terms of the rental agreement.
3.If the tenant/appellant fails to pay the rent into the court registry within the time limits prescribed by these rules, the appellee may file a notice of default in county court. Upon sworn motion by the appellee and a showing of default to the judge, the court shall issue a writ of possession.
4.The landlord/appellee may withdraw any or all rent in the county court registry upon (a) sworn motion and hearing, prior to final determination of the cause, showing just cause; (b) dismissal of the appeal; or (c) order of the court upon final hearing.
5.All hearings and motions under this rule shall be entitled in precedence in the county court.
Tex. R. Civ. P. 510.9(c)(5)(B).
Some justice courts and some attorneys mistakenly believe the timely payment of the designated amount into the registry of the court is a jurisdictional prerequisite to perfect the tenant’s appeal of a nonpayment-of-rent case. The sole effect of the timely payment of the designated sum into the registry of the court is to perfect the tenant’s right to maintain possession of the premises during the pendency of the appeal, as a default judgment on the case in chief is not authorized by a tenant/appellant’s default under Tex. R. Civ. P. 510.9(c)(5)(B). Kennedy v. Highland Hills Apartments, 905 S.W.2d 325, 327 (Tex. App.—Dallas 1995, no writ) (examining the predecessor to Tex. R. Civ. P. 510.9(c)(5)(B)).
Recovering Possession for Tenant/Appellant’s Failure to Pay Rent into Court Registry (Nonpayment-of-Rent Cases Only): When the tenant/appellant fails to comply with the requirements to pay rent into the registry of the court in nonpayment-of-rent cases, the procedure for the landlord/appellee to recover possession is as follows:
1.Limited jurisdiction of justice court. If the tenant/appellant was provided with notice under Tex. R. Civ. P. 510.9(c)(5)(A), fails to pay the designated amount into the justice court registry within five days, and the transcript has not been transmitted to the county clerk, the landlord is entitled, upon request and payment of the applicable fee, to a writ of possession, which the justice court must issue immediately and without hearing. Tex. R. Civ. P. 510.9(c)(5)(B)(i)
2.Jurisdiction vested in county court. Once the transcript has been transmitted by the justice court clerk to the county clerk, the only court having jurisdiction of the determination of the failure of the tenant/appellant to timely deposit the designated amounts into the registry of either the justice court or the county court is the county court. See Tex. Prop. Code § 24.0054(b). Some justice courts mistakenly “hold” the tenant’s appeal, in violation of the requirement to immediately deliver the transcript to county court under Tex. R. Civ. P. 510.10(a), “waiting” on the tenant to pay the designated amount into the registry of the justice court. See Tex. R. Civ. P. 510.10(a).
3.Motion to obtain possession in county court for failure to deposit the designated amount. If the tenant/appellant fails to pay the designated amount into either court registry within the proper time limits set forth in Tex. R. Civ. P. 510.9(c)(5)(B), the landlord may file a sworn motion in county court that the tenant/appellant is in default. The landlord must notify the defendant of the motion and hearing date. Upon a showing that the tenant/appellant is in default, the county court must issue a writ of possession, unless on or before the day of the hearing the tenant/appellant pays into the court registry all rent not paid into the court registry pursuant to Tex. R. Civ. P. 510.9(c)(5)(B)(iv), and the landlord’s reasonable attorney’s fees in filing the sworn motion. Tex. Prop. Code § 24.0054(b); Tex. R. Civ. P. 510.9(c)(5)(B)(iv).
4.Issuance and service of writ of possession issued under Tex. Prop. Code § 24.0054(c). If the tenant has not paid into the court registry all rent and the attorney’s fees in filing the sworn motion under Tex. Prop. Code § 24.0054(b) before the Tex. R. Civ. P. 510.9(c)(5)(B)(iv) default, the writ of possession issues immediately. Tex. Prop. Code § 24.0054(b). If the tenant complies with Tex. Prop. Code § 24.0054(b) on one occasion and then fails a second time to timely deposit sums into the registry of the court, the writ issues immediately but not may be executed before the sixth day after the date the writ is issued. Tex. Prop. Code § 24.0054(c), (d).
5.Governmental assistance payments not paid by agency. When a governmental entity fails to pay the tenant subsidy to the landlord or into the registry of either the justice or county court, the landlord may file a motion to require the tenant to regularly pay the full amount of rent into the registry of the court, which motion, after notice and hearing, must be granted if the landlord proves by credible evidence that (1) a portion of the rent is owed by a government agency, (2) the portion of the rent paid by the government agency is unpaid, (3) the landlord did not cause wholly or partly the agency to cease making payments, (4) the landlord did not cause wholly or partly the agency to pay the wrong amount, and (5) the landlord is not able to take reasonable action that will cause the agency to resume making the payments of its portion of the total rent due under the rental agreement. Tex. Prop. Code § 24.0054(f).
Practice Note: When representing the landlord on a Tex. R. Civ. P. 510.9(c)(5)(B)(iv) default, the attorney should always request the immediate issuance of the writ of possession so that the ministerial act of the county clerk’s issuance occurs as soon as possible.
Practice Note: While a writ of possession that issued under Tex. Prop. Code § 24.0054(b) could arguably be served on the date of the hearing, the most conservative practice for a landlord is to always have the writ of possession issued but not served until the sixth day after issuance to avoid the conflicts under Tex. Prop. Code §§ 24.0054, 24.0061(b).
Sums Deposited into the Registry of the Court: The landlord/appellee may withdraw any or all rent in the county court registry upon a sworn motion and hearing before final determination of the case showing just cause, dismissal of the appeal, or by order of the court after final hearing. Tex. R. Civ. P. 510.9(c)(5)(B)(v).
The appeal of a suit for possession is heard by the county court de novo. Tex. R. Civ. P. 510.10(c). All aspects of the appeal of a suit for possession are entitled to precedence in the county court. Tex. R. Civ. P. 510.10(c).
The county clerk is to notify both parties of receipt of the transcript and the docket number in county court. Tex. R. Civ. P. 510.10(b). If the appellant perfected the appeal by filing an appeal bond, the notification will usually include notice that the appellant must pay the filing fee. See Tex. R. Civ. P. 143a. The notice to the defendant must also advise the defendant of the requirement to file a written answer within eight days if one was not filed in the justice court. Tex. R. Civ. P. 510.10.
The only counterclaim allowed in an appeal of a suit for possession is for the recovery of attorney’s fees incurred for defending the right to possession. See Tex. Prop. Code § 92.335; Tex. R. Civ. P. 510.3(e), 510.11. The fee for the counterclaim must be paid, or the introduction of proof on the counterclaim may be subject to the objection of the plaintiff. See Tex. Gov’t Code § 51.317(b).
If the defendant failed to file a written answer in the justice court and fails to file a written answer within eight days after the transcript is filed in county court, a judgment by default may be issued by the county court. Tex. R. Civ. P. 510.12.
The de novo trial of a nonjury appeal may be set on eight days’ notice. Tex. R. Civ. P. 510.12. Cattin v. Highpoint Village Apartments, 26 S.W.3d 737, 739 (Tex. App.—Fort Worth 2000, pet. dism’d w.o.j.) (holding that “the plain language of [the predecessor to Tex. R. Civ. P. 510.12] governs the time for trial in forcible detainer appeals. Applying [Tex. R. Civ. P.] 245 as Appellants suggest would ignore the specific rules governing forcible detainer actions and the plain language of [the predecessor to Tex. R. Civ. P. 510.12.] and undermine the purpose behind [the forcible detainer rules].”).
A jury demand delivered in an eviction appeal on less than the thirty-day notice required in Tex. R. Civ. P. 216(a) may be reasonable; the (now three)-day requirement in the predecessor to Tex. R. Civ. P. 510.7(b) applies only in justice court. Collins v. Cleme Manor Apartments, 37 S.W.3d 527, 531–32 (Tex. App.—Texarkana 2001, no pet.).
At the trial on the merits in county court, a prevailing landlord is entitled to recover rentals (if requested), attorney’s fees (provided that the landlord complied with Tex. Prop. Code § 24.006), and court costs through trial but may not recover damages for other causes of action. Tex. R. Civ. P. 510.11; Krull v. Somoza, 879 S.W.2d 320, 322 (Tex. App.—Houston [14th Dist.] 1994, writ denied). A prevailing tenant may recover attorney’s fees from the landlord for defending the right to possession. Only the party prevailing in the county court may recover damages and court costs. Tex. Prop. Code § 24.006(d).
§ 28.29:4Appeal to Court of Appeals
In 2011, the legislature revised Tex. Prop. Code § 24.007 to allow appeals from final judgments for possession in county court in both commercial and residential evictions. Acts 2011, 82d Leg., R.S., ch. 3, § 2.02 (H.B. 79), eff. Jan. 1, 2012. The 2015 legislative session revised the statute; now only commercial evictions filed before January 1, 2016, will be entitled to be appealed through the court of appeals and supreme court. The county court will be the court of last resort for commercial evictions filed after January 1, 2016. Acts 2015, 84th Leg., R.S., ch. 1113, §§ 1–2 (H.B. 3364), eff. Jan. 1, 2016.
The county court must set a supersedeas bond in an amount that provides protection for the appellee to the same extent as in any other appeal, taking into consideration the value of rents likely to accrue during appeal, damages that may occur as a result of the stay during appeal, and other damages or amounts as the court may deem appropriate. Tex. Prop. Code § 24.007. The supersedeas bond must be filed within ten days of the date the judgment was signed. Tex. Prop. Code § 24.007; Tex. R. Civ. P. 510.13. If the supersedeas bond is not timely filed, a writ of possession may issue and be executed. Kemper v. Stonegate Manor Apartments, Ltd., 29 S.W.3d 362, 362 (Tex. App.—Beaumont 2000, pet. dism’d w.o.j.), disapproved on other grounds by Marshall v. Housing Authority of City of San Antonio, 198 S.W.3d 782, 786 n.2 (Tex. 2006).
If the tenant perfects an appeal but vacates his unit during the pendency of appeal, the issue of the tenant’s right to possession becomes moot at lease expiration. Marshall, 198 S.W.3d at 782.
If a judgment or verdict is in favor of the plaintiff, a justice court must issue a writ of possession on or after the sixth calendar day after the date the judgment for possession was signed. Tex. R. Civ. P. 510.8(d). If judgment for possession is rendered by default, a justice court must issue a writ of possession immediately if the plaintiff has filed and timely served a possession bond under Tex. R. Civ. P. 510.5, but only on or after the seventh day after the date the tenant was served with notice of the filing of the possession bond. Tex. Prop. Code § 24.0061(b); Tex. R. Civ. P. 510.5(c).
When the tenant/appellant files a bond or cash deposit pursuant to Tex. R. Civ. P. 510.9 and fails to pay the filing fee in county court within twenty days, the county clerk must return the transcript to the justice court, and the justice court may issue the writ of possession upon return of the transcript. Tex. R. Civ. P. 143a.
In appeals of nonpayment-of-rent cases where the tenant/appellant has filed a sworn statement of inability to pay under Tex. R. Civ. P. 510.9(c), the county clerk issues a writ of possession immediately after the plaintiff/appellee establishes default under Tex. R. Civ. P. 510.9(c)(5)(B)(iv). Provided no supersedeas bond is filed by the tenant/appellant within ten days after the judgment is signed under Tex. Prop. Code § 24.007, the county clerk issues the writ of possession on or after the eleventh day. Tex. R. Civ. P. 510.13. When the tenant timely appeals but fails to file a supersedeas bond within ten days after the judgment is signed, writ of possession may issue and be served. Compare Kemper v. Stonegate Manor Apartments, Ltd., 29 S.W.3d 362, 362 (Tex. App.—Beaumont 2000, pet. dism’d w.o.j.) (holding case is moot once landlord takes possession), with Marshall v. Housing Authority of City of San Antonio, 198 S.W.3d 782, 786 (Tex. 2006) (appeal not moot when tenant timely and clearly expresses intent to exercise right of appeal and if appellate relief is not futile; disapproving of Kemper to the extent it conflicts).
The prevailing plaintiff must pay the fee for the issuance of the writ of possession by the county clerk or justice court and the fee for service by the constable or sheriff set by the commissioners court. Tex. Loc. Gov’t. Code § 118.0545(d).
The officer executing the writ must post a written warning of at least 8-1/2 by 11 inches on the exterior of the front door of the rental unit notifying the tenant that the writ has been issued and that the writ will be executed on or after a specific date and time stated in the warning not sooner than twenty-four hours after the warning is posted. Tex. Prop. Code § 24.0061(d)(1).
The officer executing the writ of possession may use reasonable force to execute the writ. Tex. Prop. Code § 24.0061(h). The officer shall—
1.deliver possession of the premises to the landlord, Tex. Prop. Code § 24.0061(d)(2)(A);
2.instruct the tenant and all persons claiming under the tenant to leave the premises immediately, and if the persons fail to comply, physically remove them, Tex. Prop. Code § 24.0061(d)(2)(B);
3.instruct the tenant to remove or to allow the landlord, the landlord’s representatives, or other persons acting under the officer’s supervision to remove all personal property from the rental unit other than personal property claimed to be owned by the landlord, Tex. Prop. Code § 24.0061(d)(2)(C); and
4.place, or have an authorized person place, the removed personal property outside the rental unit at a nearby location but not blocking a public sidewalk, passageway, or street, Tex. Prop. Code § 24.0061(d)(2)(D).
The writ of possession may not be executed when it is raining, sleeting, or snowing. Tex. Prop. Code § 24.0061(d)(2)(D); Campos v. Investment Management Properties, 917 S.W.2d 351, 355 (Tex. App.—San Antonio 1996, writ denied). The officer executing the writ of possession may not require the landlord to store the personal property. Tex. Prop. Code § 24.0061(f). Some standardized leases include an agreement between the landlord and tenant that the landlord may take certain steps to dispose of the personal property after execution of the writ of possession. See, e.g., Texas Apartment Association, Inc., Apartment Lease Contract (2017), § 14.3, www.taa.org/resources/texas-apartment-association-sample-apartment-lease-contract-english-and-spanish/.
Warehouseman’s Lien: Tex. Prop. Code § 24.0062 discusses warehouseman’s liens. If the property is stored by the sheriff or constable in a bonded or insured public warehouse, the warehouseman has a lien on the property for his reasonable moving and storage charges. The lien does not attach to any property until the property has been stored by the warehouseman. Tex. Prop. Code § 24.0062(a). The officer must send a written notice to the tenant of the address and telephone number of the warehouse and the tenant’s right to redeem the property by paying the warehouseman’s charges. See Tex. Prop. Code § 24.0062(b), (c) for notice requirements. If the tenant does not redeem the property within thirty days, the warehouseman may sell the property to satisfy his charges. Tex. Prop. Code § 24.0062(b)(5).
Practice Note: When obtaining a writ of possession issued by the county clerk after appeal, the best practice is to deliver the writ to the constable of the justice precinct in which the premises are located for execution, as the constable is usually more experienced in execution than the sheriff.
§ 28.31Implications of Tenant Bankruptcy
The automatic stay under 11 U.S.C. § 362 that goes into effect the moment a tenant files a petition for relief affects the prosecution of a suit for possession; however, the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 specifically limited the effect of the stay in suits for possession in certain circumstances. In the very limited circumstances below, no motion for relief from stay is necessary to continue the prosecution of an eviction.
Specifically, the filing of a petition for relief under the Bankruptcy Code does not operate as a stay in the following scenarios.
Final Judgment: Bankruptcy proceedings will not operate as a stay when the landlord’s judgment for possession for residential property has become final before the tenant files the petition for relief in bankruptcy. 11 U.S.C. § 362(b)(22).
Suit Based on Endangerment of Property: When the suit for possession is based on the ten-ant’s endangerment of residential property, bankruptcy proceedings will not act as an automatic stay beginning fifteen days after the landlord files with the bankruptcy court and serves on the tenant/debtor a certification that such a suit for possession has been filed or a certification that the tenant/debtor has endangered property during the thirty-day period preceding the date of the filing of the certification. 11 U.S.C. § 362(m), (b)(23). The tenant/debtor must file an objection to the certification under 11 U.S.C. § 362(m) within fifteen days after the filing and service of the certification. If no objection is timely filed, or if an objection is timely filed and rejected by the bankruptcy court at a hearing held within ten days of the filing of the objection, then the stay is of no further effect. 11 U.S.C. § 362(m).
Suit Based on Illegal Use of Controlled Substances: When the suit for possession is based on the illegal use of controlled substances on the premises, bankruptcy proceedings will not act as an automatic stay beginning fifteen days after the landlord files with the bankruptcy court and serves on the tenant/debtor a certification that such a suit for possession has been filed or a certification that the tenant/debtor has endangered property during the thirty-day period preceding the date of the filing of the certification. 11 U.S.C. § 362(m), (b)(23). The tenant/debtor must file an objection to the certification under 11 U.S.C. § 362(m) within fifteen days after the filing and service of the certification. If no objection is timely filed, or if an objection is timely filed and rejected by the bankruptcy court at a hearing held within ten days of the filing of the objection, then the stay is of no further effect. 11 U.S.C. § 362(m).
§ 28.32Distress Warrants (Commercial and Agricultural Leases)
A distress warrant is a judicial remedy filed in justice court that perfects the landlord’s statutory commercial or agricultural lien by having the constable seize the tenant’s personal property subject to the lien; after seizure, the distress warrant is returnable to the court in which the commercial landlord’s suit for rent is pending. Distress warrants are covered in Tex. R. Civ. P. 610–620 and section 54.025 of the Texas Property Code. They are not available for enforcement of a residential landlord’s lien.
The landlord may seek a distress warrant directing a sheriff or constable to attach and hold specified property. The person to whom rent or an advance is payable or the person’s agent, attorney, assign, or other legal representative may apply to an appropriate justice court for a distress warrant under any of three circumstances: (1) if the tenant owes any rent or, for an agricultural lien, any advance; (2) if the tenant is about to abandon the premises; or (3) if the tenant is about to remove the tenant’s property from the premises. Tex. Prop. Code §§ 54.006, 54.025. Enforcing a landlord’s lien by having property seized before final judgment is also called “distraint.” In place of a distress warrant, a landlord may seek a writ of prejudgment attachment or sequestration as its remedy. Generally, the application for a distress warrant must be filed with an appropriate justice court at the commencement of a suit or at any time during its progress. Tex. R. Civ. P. 610 outlines the requirements for the application and affidavits. If the warrant is to issue before final judgment, the court must hold a hearing, which may be ex parte, and require a bond of the landlord. See Tex. R. Civ. P. 610, 611. If the suit is based on an agricultural landlord’s lien, the application must be filed with a justice court in the precinct in which the leasehold is located or in which the property subject to the lien is located or with the justice court that has jurisdiction of the cause of action. Tex. Prop. Code § 54.006. If the suit is based on a building landlord’s lien, the application must be filed with a justice court in the precinct in which the building is located. Tex. Prop. Code § 54.025.
§ 28.32:1Commercial Landlord’s Statutory Lien
The landlord of a building leased for nonresidential purposes has a statutory preference lien on a tenant’s property for rent that becomes due during the twelve-month period succeeding the date of the beginning of the rental agreement or the anniversary of the date. Tex. Prop. Code § 54.021. By way of priority, unless a landlord perfects its security interest on an annual basis, beginning on the date the lease commences, an intervening security interest of another creditor will have priority over the landlord’s lien. See Tex. Bus. & Com. Code § 9.203; Bank of North America v. Kruger, 551 S.W.2d 63, 66 (Tex. App.—Houston [1st Dist.] 1977, writ ref’d n.r.e.). For example, the building landlord’s lien loses priority to the security interest of another creditor if the lease covers the period between January 1, 2020, and December 31, 2020, and the security interest is perfected after December 31, 2020. Tex. Prop. Code § 54.021, therefore, effectively divides a lease into contract years for purposes of determining whether a perfected secured creditor’s security interest will supersede a statutory landlord’s lien. Each year of the contract is viewed separately. At the beginning of each contract year, if the secured creditor’s UCC financing statement has been filed during the previous year, its lien will be superior to the landlord’s lien. FDIC v. Sears, Roebuck & Co., 743 S.W.2d 772, 773 (Tex. App.—El Paso 1988, no writ). The lien does not attach to property exempted by statute from forced sale. Tex. Prop. Code § 54.023.
For an affidavit and lien statement, see form 28-2 in this chapter.
§ 28.32:2Perfection of Commercial Landlord’s Statutory Lien
The statutory lien is unenforceable for rent on a commercial building that is more than six months past due unless the commercial landlord files a verified lien statement with the county clerk of the county in which the building is located that contains (1) an account, itemized by month, of the rent for which the lien is claimed; (2) the name and address of the tenant or sub-tenant, if any; (3) a description of the leased premises; and (4) the beginning and termination dates of the lease. Tex. Prop. Code § 54.022.
Filing the statement presumably makes the lien enforceable against the tenant regardless of when it is filed, but the time of filing can be crucial in protecting the lien’s priority against intervening liens. For this reason the statement should be filed no later than six months after rent for any given month becomes due. See Industrial State Bank v. Oldham, 221 S.W.2d 912, 914 (Tex. 1949).
For an affidavit and lien statement, see form 28-2 in this chapter.
§ 28.32:3Duration of Commercial Landlord’s Statutory Lien
The lien exists while the tenant occupies the building and until one month after the day the tenant abandons it. Tex. Prop. Code § 54.024.
§ 28.32:4Agricultural Landlord’s Statutory Lien
An agricultural landlord acquires a lien on an agricultural tenant’s property for rent due and for “the money and the value of property that the landlord furnishes or causes to be furnished to the tenant to grow a crop on the leased premises and to gather, store, and prepare the crop for marketing.” Tex. Prop. Code § 54.001. The lien does not arise if the rent charged by the agricultural landlord exceeds certain percentages of the value of grain or cotton crops grown on the premises. Tex. Prop. Code § 54.003. The agricultural lien is effective against a purchaser of the tenant’s crops regardless of actual notice or lack of notice to the purchaser, and the landlord may enforce the lien by foreclosing on the crops or by suing the purchaser for conversion. Dill v. Graham, 530 S.W.2d 157, 160 (Tex. App.—Amarillo 1975, writ ref’d n.r.e.).
§ 28.32:5Attachment of Agricultural Landlord’s Statutory Lien
This lien attaches to property on the leased premises that the landlord directly or indirectly furnishes to a tenant on which to grow crops, and it attaches to those crops grown in the year that the rent accrues or the property is furnished. However, if the landlord provides everything except labor, the lien attaches only to the crops grown in the year that the property is furnished. The lien does not attach to the goods of a merchant, trader, or mechanic if the tenant sells and delivers the goods in good faith in the regular course of business. Agricultural products, animals, and tools subject to a statutory agricultural lien may not be exempted from forced sale by other statutes. Tex. Prop. Code § 54.002(d).
In addition to filing suit to foreclose the lien, the landlord may secure a distress warrant. See section 28.32 above and sections 28.32:6 through 28.32:16 below regarding distress warrants, form 28-1 in this chapter for a petition to foreclose the lien, and forms 28-3 through 28-11 for forms applicable to distress warrants. Sequestration may also be appropriate if the landlord fears the tenant may dispose of property subject to the lien. See sections 8.16 through 8.24 in this manual regarding sequestration.
A distress warrant may be requested either at the beginning of the suit or at any time during its progress. Tex. R. Civ. P. 610.
§ 28.32:7Application for Distress Warrant
The application for a distress warrant may be supported by affidavits of the plaintiff, the plaintiff’s agent, the plaintiff’s attorney, or other persons having knowledge of the relevant facts but must include a statement that the amount sued for is rent or advances described by statute or must produce a writing signed by the tenant to that effect and must further swear that the distress warrant is not sued out for the purpose of vexing or harassing the defendant. The application must meet all statutory requirements and must state grounds for issuing the warrant and specific facts relied on by the plaintiff to warrant the required findings by the justice of the peace. Two or more grounds for the warrant may be stated conjunctively or disjunctively. Tex. R. Civ. P. 610.
“The application and any affidavits shall be made on personal knowledge and shall set forth such facts as would be admissible in evidence provided that facts may be stated based upon information and belief if the grounds of such belief are specifically stated.” Tex. R. Civ. P. 610. Attorneys generally should not execute affidavits on their clients’ behalf. See section 19.17:3 in this manual. See form 28-3 in this chapter for an application for a distress warrant and form 28-4 for an affidavit.
No warrant may issue before final judgment except on written order of the justice of the peace after a hearing, which may be ex parte. Tex. R. Civ. P. 610.
Tex. R. Civ. P. 610 specifies the required elements of the order granting the application for the distress warrant, which include findings of fact supporting the statutory grounds, the maximum value of the property to be seized, the amount of bond required of the plaintiff, the amount of bond required of the debtor to replevy, and a commandment that the property be kept safe and preserved subject to further orders of the court having jurisdiction. See form 28-5 in this chapter for an order for issuance of distress warrant.
No distress warrant can issue before final judgment until the plaintiff has filed a bond with the justice of the peace in an amount to adequately compensate the defendant if the plaintiff fails to prosecute his suit to effect and pay all damages and costs as may be adjudged against him for wrongfully suing out the warrant. Tex. R. Civ. P. 610, 611.
§ 28.32:11Requisites of Warrant
The warrant must be directed to the sheriff or any constable within the state, commanding him to attach and hold as much of the defendant’s property, not exempt by statute, of reasonable value in approximately the amount fixed by the justice of the peace, as is found within the county. Tex. R. Civ. P. 612.
On the face of the warrant, “in 10-point type and in a manner calculated to advise a reasonably attentive person of its contents,” the following notice must be displayed.
To __________, Defendant:
You are hereby notified that certain properties alleged to be owned by you have been seized. If you claim any rights in such property, you are advised:
You have a right to regain possession of the property by filing a replevy bond. You have a right to seek to regain possession of the property by filing with the Court a motion to dissolve this warrant.
Tex. R. Civ. P. 613. See form 28-7 in this chapter for a distress warrant.
§ 28.32:12Service and Return of Warrant
The defendant must be served with a copy of the distress warrant, the application, accompanying affidavits, and orders of the justice of the peace in any manner prescribed for service of citation or as provided in rule 21a. Tex. R. Civ. P. 613. If the value of the property subject to the warrant falls within the jurisdictional limits of the justice court, the warrant will be returned to that court; otherwise the warrant is made returnable to the district court with jurisdiction over the action. Tex. R. Civ. P. 619. See form 28-8 in this chapter for an officer’s return.
§ 28.32:13Tenant’s Right to Replevy
If the seized property has not been claimed or sold, the tenant may replevy all or part of the property at any time before judgment by filing a bond in double the amount of the landlord’s debt; the amount of the judgment rendered and any costs assessed against the tenant shall be first satisfied, to the extent possible, out of the bond. Tex. Prop. Code § 54.048; Tex. R. Civ. P. 614. If the property has been sold by court order, the defendant can replevy the proceeds of the sale. Tex. R. Civ. P. 614.
A landlord who wrongfully obtains a distress warrant may be liable for wrongful distraint. See McKee v. Sims, 45 S.W. 564, 565 (Tex. 1898); see also McAfee v. Chandler, 7 S.W.2d 623, 624 (Tex. App.—Amarillo 1928, no writ) (exemplary damages may be levied where distress warrant issued without probable cause and for purpose of harassing defendant). Liability for wrongful distraint may arise from levying a distress warrant on property in excess of the amount sued, making false allegations in the landlord’s affidavit about the amount of rent due, or levying on property not subject to the landlord’s lien. In McVea v. Verkins, the court held that to enforce a contractual landlord’s lien and to obtain possession of the property subject to the lien absent consent by the tenant, the landlord must foreclose the lien by judicial proceedings and in no other way. 587 S.W.2d 526, 531 (Tex. App.—Corpus Christi–Edinburg 1979, no writ) (citing Schwulst v. Neely, 50 S.W. 608, 609 (Tex. App.—Dallas 1899, no writ)). In Bank of North America v. Kruger, the court held that contractual landlord’s liens are subject to provisions of the Uniform Commercial Code but that statutory landlord’s liens are not. 551 S.W.2d 63, 65 (Tex. App.—Houston [1st Dist.] 1977, writ ref’d n.r.e.).
§ 28.32:15Dissolution or Modification of Distress Warrant
After issuance of the warrant, the defendant or any intervening party who claims an interest in the seized property may seek to vacate, dissolve, or modify the seizure by sworn written motion. Tex. R. Civ. P. 614a.
§ 28.32:16Emergency Sale of Perishable Property
If property seized under a distress warrant is “in danger of serious and immediate waste or decay” or if keeping it until trial will greatly reduce its value, the court may order an emergency sale. Tex. R. Civ. P. 615. Procedures for determining whether the property is perishable and for selling it are prescribed in Tex. R. Civ. P. 616–618. For an application for emergency sale, see form 28-9 in this chapter; for an affidavit for emergency sale, see form 28-10; and for an order for emergency sale, see form 28-11.
[Sections 28.33 through 28.40 are reserved for expansion.]
V. Remedies and Damages After Tenant Abandons Premises
The case of Speedee Mart Inc. v. Stovall, 664 S.W.2d 174, 177 (Tex. App.—Amarillo 1983, no writ), outlines the four common-law remedies available to a landlord when a tenant breaches a lease by abandoning a property and terminating rental payments:
1.Decline to repossess property. The landlord may decline to repossess the property, electing instead to maintain the lease in full force and effect. Under this option, he can sue on the contract for the rent as it comes due. This option, however, is now somewhat suspect with the supreme court’s indication of a requirement to mitigate damages. See section 28.42 below regarding mitigation.
2.Anticipatory breach/own purposes. The landlord may treat the tenant’s conduct as an anticipatory breach of contract and repossess and retain the property for his own purposes. Under this option, he recovers the present value of the rentals that accrue under the lease contract reduced by the reasonable cash market value of the lease for the unexpired term.
3.Anticipatory breach/relet. The landlord may treat the tenant’s conduct as an anticipatory breach of contract, repossess the property, and lease it to another tenant. Under this option, he can recover the actual rental reduced by the amount to be received from the new tenant.
4.Forfeiture. The landlord may declare the lease forfeited. Under this option, he relieves the tenant of liability for future rental payments.
See Austin Hill Country Realty, Inc. v. Palisades Plaza, Inc., 948 S.W.2d 293 (Tex. 1997); Lakeside Leasing Corp. v. Kirkwood Atrium Office Park Phase 3, 750 S.W.2d 847, 851 (Tex. App.—Houston [14th Dist.] 1998, no writ); Look v. Werlin, 590 S.W.2d 526, 528 (Tex. App.—Houston [1st Dist.] 1979, no writ).
The common-law remedies are available unless the parties contract otherwise. Speedee Mart, 664 S.W.2d at 177 n.1. In Speedee Mart, the court of appeals reversed the trial court’s judgment because at the time of trial the damages model was based on future rent calculated from the time of trial, not the future rent calculated from the time of breach. The court held that the proper calculation should be future rent from the time of breach to the end of the lease reduced to its present value, then further reduced by the reasonable cash market value of the lease for the unexpired term. See Speedee Mart, 664 S.W.2d at 178.
In Look, 590 S.W.2d at 527, the court held that, based on the testimony given at trial, the leased premises had a market value only in the event of reletting. Therefore, since the space had not been relet, the market value was zero.
Monetary damages under a commercial lease contract are not easily calculated. The question of mitigation further complicates this analysis. Texas has both a judicial and legislative approach to mitigation. The concurring opinion in Brown v. Republic-Bank First National Midland, 766 S.W.2d 203, 204–05 (Tex. 1988), notes that on the question of whether a landlord should mitigate its damages, there is a pronounced disagreement among the states springing from the fact of the dual nature of a lease as both a contract and a conveyance of an interest in land. While the Brown court did not decide the issue of whether there should be an implied duty to mitigate placed on a landlord, in Austin Hill Country Realty, Inc. v. Palisades Plaza, Inc., 948 S.W.2d 293 (Tex. 1997), the court explicitly held that a landlord has a duty to mitigate. The duty to mitigate is not absolute but requires the landlord to use reasonable efforts to fill the premises or the landlord is barred from recovery from the breaching tenant to the extent the landlord could have reasonably avoided damages. Austin Hill Country Realty, Inc., 948 S.W.2d at 299.
When the tenant contends that the landlord has failed to mitigate damages, the tenant must plead the landlord’s failure to mitigate as an affirmative defense; otherwise, the tenant may not offer evidence of the landlord’s failure to mitigate. Austin Hill Country Realty, Inc., 948 S.W.2d at 299–300. The tenant has the burden of proof to demonstrate whether or not the land-lord has mitigated. Austin Hill Country Realty, Inc., 948 S.W.2d at 299–300.
In 1997, the legislature added a mitigation rule, which provides that (1) a landlord has a duty to mitigate damages if a tenant abandons the leased premises in violation of the lease and (2) a provision of a lease that purports to waive this right or to exempt a landlord from liability under it is void. Tex. Prop. Code § 91.006. By its terms, Code section 91.006 is applicable only to leases that were entered into on or after September 1, 1997, and where the tenant abandoned the leased premises. The statute uses the term abandon and therefore should not be applicable to situations in which (1) the tenant’s right to possession of the leased premises has been terminated for default (before the tenant abandons) or (2) the tenant has been removed from the leased premises via lockout or court order. If there is no termination of the tenant’s right to possession of the leased premises, lockout, or court order, abandonment likely occurred. Abandonment is a fact issue, but see Tex. Prop. Code § 93.002(d), which defines abandonment in the context of a commercial lease as follows: “A tenant is presumed to have abandoned the premises if goods, equipment or other property, in an amount substantial enough to indicate a probable intent to abandon the premises, is being or has been removed from the premises and the removal is not within the normal course of the tenant’s business.” If section 91.006 is not applicable, Austin Hill Country Realty, Inc., provides the Texas law.
Since Austin Hill Country Realty, Inc., several courts of appeals have handed down relevant opinions. Two significant opinions are Cash America International, Inc. v. Hampton Place, Inc., 955 S.W.2d 459 (Tex. App.—Fort Worth 1997, pet. denied), and Stucki v. Noble, 963 S.W.2d 776 (Tex. App.—San Antonio 1998, pet. denied).
In Cash America, the commercial landlord brought an action against the tenant for anticipatory breach of lease. The court stated that the mitigation instructions sanctioned by the supreme court ask the jury to reduce damages not only for the reasonable cash market value of the unexpired term but also by the amount of damages that could have been avoided had the landlord used reasonable care in attempting to relet the leased premises.
In Stucki, the commercial landlord brought an action against the tenant to recover amounts due under a lease. The tenant argued that the summary judgment granted at the trial court level should be set aside on the grounds that the landlord failed to mitigate damages and because fact issues remained regarding mitigation. The lease specifically provided that the landlord had no obligation to “relet or attempt to relet the premises” in the event of the tenant’s default. The court of appeals upheld the contractual waiver, citing Austin Hill Country Realty, Inc.: “[A] landlord’s duty to mitigate his damages arises only when the landlord and the tenant have not contracted otherwise.” Stucki, 963 S.W.2d at 781. The court also noted that the burden of proving failure to mitigate was on the tenant and that it had been waived it in this case because the tenant had offered no evidence to support his allegations of failure to mitigate. Stucki, 963 S.W.2d at 781.
The two major differences between the judicial and legislative approaches are that (1) the statutory provision, which applies only if the tenant abandons the premises, may not be waived by agreement of the landlord and tenant, and (2) the statutory provision does not qualify the land-lord’s duty to mitigate on whether or not the landlord has a contractual right to reenter without forfeiting the lease.