How much notice do I have to give legally to evict tenants for non payment of rent?

Full Question:

If renting out my private home and I decide to evict the persons in the home because of late rent payment, non-payment of rent or due to the fact I think illegal activity is going on. Persons were arrested due to drug charges. How much notice do I have to give legally. I was told 30 days, and I was told 10 days. In staying wiith Texas law how many days constitute a eviction?
06/16/2007   |   Category: Landlord Tenant   |   State: Texas   |   #6476

Answer:

The applicable Texas statutes are as follows:

§ 24.005 PROP. Notice to Vacate Prior to Filing Eviction Suit

(a) If the occupant is a tenant under a written lease or oral rental
agreement, the landlord must give a tenant who defaults or holds over
beyond the end of the rental term or renewal period at least three days'
written notice to vacate the premises before the landlord files a
forcible detainer suit, unless the parties have contracted for a shorter
or longer notice period in a written lease or agreement. A landlord who
files a forcible detainer suit on grounds that the tenant is holding over
beyond the end of the rental term or renewal period must also comply with
the tenancy termination requirements of Section 91.001

(b) If the occupant is a tenant at will or by sufferance, the landlord
must give the tenant at least three days' written notice to vacate before
the landlord files a forcible detainer suit unless the parties have
contracted for a shorter or longer notice period in a written lease or
agreement. If a building is purchased at a tax foreclosure sale or a
trustee's foreclosure sale under a lien superior to the tenant's lease
and the tenant timely pays rent and is not otherwise in default under the
tenant's lease after foreclosure, the purchaser must give a residential
tenant of the building at least 30 days' written notice to vacate if the
purchaser chooses not to continue the lease. The tenant is considered to
timely pay the rent under this subsection if, during the month of the
foreclosure sale, the tenant pays the rent for that month to the landlord
before receiving any notice that a foreclosure sale is scheduled during
the month or pays the rent for that month to the foreclosing lienholder
or the purchaser at foreclosure not later than the fifth day after the
date of receipt of a written notice of the name and address of the
purchaser that requests payment. Before a foreclosure sale, a foreclosing
lienholder may give written notice to a tenant stating that a foreclosure
notice has been given to the landlord or owner of the property and
specifying the date of the foreclosure.

(c) If the occupant is a tenant of a person who acquired possession by
forcible entry, the landlord must give the person at least three days'
written notice to vacate before the landlord files a forcible detainer
suit.

(d) In all situations in which the entry by the occupant was a forcible
entry under Section 24.001, the person entitled to possession must
give the occupant oral or written notice to vacate before the landlord
files a forcible entry and detainer suit. The notice to vacate under this
subsection may be to vacate immediately or by a specified deadline.

(e) If the lease or applicable law requires the landlord to give a
tenant an opportunity to respond to a notice of proposed eviction, a
notice to vacate may not be given until the period provided for the
tenant to respond to the eviction notice has expired.

(f) The notice to vacate shall be given in person or by mail at the
premises in question. Notice in person may be by personal delivery to the
tenant or any person residing at the premises who is 16 years of age or
older or personal delivery to the premises and affixing the notice to the
inside of the main entry door. Notice by mail may be by regular mail, by
registered mail, or by certified mail, return receipt requested, to the
premises in question. If the dwelling has no mailbox and has a keyless
bolting device, alarm system, or dangerous animal that prevents the
landlord from entering the premises to leave the notice to vacate on the
inside of the main entry door, the landlord may securely affix the notice
on the outside of the main entry door.

(g) The notice period is calculated from the day on which the notice is
delivered.

(h) A notice to vacate shall be considered a demand for possession for
purposes of Subsection (b) of Section 24.002

(i) If before the notice to vacate is given as required by this section
the landlord has given a written notice or reminder to the tenant that
rent is due and unpaid, the landlord may include in the notice to vacate
required by this section a demand that the tenant pay the delinquent rent
or vacate the premises by the date and time stated in the notice.

§ 24.0051 PROP. Procedures Applicable in Suit to Evict and Recover
Unpaid Rent

(a) In a suit filed in justice court in which the landlord files a
sworn statement seeking judgment against a tenant for possession of the
premises and unpaid rent, personal service on the tenant or service on the
tenant under Rule 742a, Texas Rules of Civil Procedure, is procedurally
sufficient to support a default judgment for possession of the premises
and unpaid rent.

(b) A landlord may recover unpaid rent under this section regardless of
whether the tenant vacated the premises after the date the landlord filed
the sworn statement and before the date the court renders judgment.

(c) In a suit to recover possession of the premises, whether or not
unpaid rent is claimed, the citation required by Rule 739, Texas Rules of
Civil Procedure, must include the following notice to the defendant:

Added by Acts 1999, 76th Leg., ch. 1464, § 1, eff. Sept. 1, 1999. Amended
by Acts 2005, 79th Leg., ch. 712, § 1, eff. Sept. 1, 2005.

§ 24.006 PROP. Attorney's Fees and Costs of Suit

(a) Except as provided by Subsection (b), to be eligible to recover
attorney's fees in an eviction suit, a landlord must give a tenant who is
unlawfully retaining possession of the landlord's premises a written
demand to vacate the premises. The demand must state that if the tenant
does not vacate the premises before the 11th day after the date of
receipt of the notice and if the landlord files suit, the landlord may
recover attorney's fees. The demand must be sent by registered mail or by
certified mail, return receipt requested, at least 10 days before the
date the suit is filed.

(b) If the landlord provides the tenant notice under Subsection (a) or
if a written lease entitles the landlord to recover attorney's fees, a
prevailing landlord is entitled to recover reasonable attorney's fees from
the tenant.

(c) If the landlord provides the tenant notice under Subsection (a) or
if a written lease entitles the landlord or the tenant to recover
attorney's fees, the prevailing tenant is entitled to recover reasonable
attorney's fees from the landlord. A prevailing tenant is not required to
give notice in order to recover attorney's fees under this subsection.

(d) The prevailing party is entitled to recover all costs of court.

§ 24.0061 PROP. Writ of Possession

(a) A landlord who prevails in an eviction suit is entitled to a
judgment for possession of the premises and a writ of possession. In this
chapter, "premises" means the unit that is occupied or rented and any
outside area or facility that the tenant is entitled to use under a
written lease or oral rental agreement, or that is held out for the use
of tenants generally.

(b) A writ of possession may not be issued before the sixth day after
the date on which the judgment for possession is rendered unless a
possession bond has been filed and approved under the Texas Rules of Civil
Procedure and judgment for possession is thereafter granted by default.

(c) The court shall notify a tenant in writing of a default judgment
for possession by sending a copy of the judgment to the premises by first
class mail not later than 48 hours after the entry of the judgment.

(d) The writ of possession shall order the officer executing the writ
to:

(1) 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 24 hours
after the warning is posted; and

(2) when the writ is executed:

(A) deliver possession of the premises to the landlord;

(B) 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;

(C) 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; and

(D) 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 and not while it is raining,
sleeting, or snowing.

(e) The writ of possession shall authorize the officer, at the
officer's discretion, to engage the services of a bonded or insured
warehouseman to remove and store, subject to applicable law, part or all
of the property at no cost to the landlord or the officer executing the
writ.

(f) The officer may not require the landlord to store the property.

(g) The writ of possession shall contain notice to the officer that under
Section 7.003, Civil Practice and Remedies
Code, the officer is not liable for damages resulting from the execution of
the writ if the officer executes the writ in good faith and with
reasonable diligence.

(h) A sheriff or constable may use reasonable force in executing a writ
under this section.

§ 24.008 PROP. Effect on Other Actions

An eviction suit does not bar a suit for trespass, damages, waste,
rent, or mesne profits.

§ 92.332 PROP. Nonretaliation

(a) The landlord is not liable for retaliation under this subchapter if
the landlord proves that the action was not made for purposes of
retaliation, nor is the landlord liable, unless the action violates a
prior court order under Section 92.0563, for:

(1) increasing rent under an escalation clause in a written lease for
utilities, taxes, or insurance; or

(2) increasing rent or reducing services as part of a pattern of rent
increases or service reductions for an entire multidwelling project.

(b) 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 under Section 92.331 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.

§ 92.335 PROP. Eviction Suits

In an eviction suit, retaliation by the landlord under Section 92.331
is a defense and a rent deduction lawfully made by the tenant under this
chapter is a defense for nonpayment of the rent to the extent allowed by
this chapter. Other judicial actions under this chapter may not be joined
with an eviction suit or asserted as a defense or crossclaim in an
eviction suit.

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