$$ Eviction Tips for Texas (other states too?)

[Robert Haney]

I AM NOT AN ATTORNEY AND I AM NOT GIVING LEGAL ADVICE.   SEEK LEGAL ADVICE REGARDING ANYTHING SAID BELOW.  

It appears that many landlords are unaware of how to stay out of costly County Court after a tenant appeals a Justice Court (JP Small Claims court) judgment in the landlord's favor.  It is easy for a landlord to represent himself in JP Court, but he often uses an expensive attorney for County Court if the tenant appeals the landlord's success in JP.  The County Court will likely cause another 2 months lost rent delay too.   

What I am about to tell you will often save the attorney fees and 2 months rent.  Your attorney does not tell you this because he loses the business or he doesn't know it (I don't know which is worse.)

After the JP judgment the tenant has 5 days to appeal to County Court.  He has to pay a bond to the court or claim he has no money and complete a "Pauper's Affidavit" to avoid the bond.  The tenant nearly always claims he's a Pauper.  However, when he does this he is required to pay 1 month's rent into the court's registry instead of the bond.  Tenants rarely pay this to the court which is the key to this tip.

TIP #1

When the tenant files the "Pauper's Affidavit" the court formally notifies the landlord of his right to fight the pauper claim in JP Court.  Here is what you, the landlord, do:  

1. Don't contest the pauper claim as this is rarely successful and eats up time & effort. 

2. Do NOT answer the JP Court's notice to you.  Do not say yes or no.  Do nothing.  You have 5 days to answer and the tenant's 5 days will end before your 5 days.  This is important as the case file MUST stay in the JP Court for this tip to work.  The JP Court cannot send the file to County Court unless you answer or your 5 days are up.

Call the court at exactly the end of the TENANT'S 5 days to pay the 1 month's rent to the court and confirm he has not paid it and that the JP still has the case file.  Tell them that you will be there ASAP to get a Writ of Possession.

Go to the JP office before your 5 days are up and pay for the Writ of Possession which you will get to be able to evict the tenant quickly (a week or 2)

The JP court will send the case file to County Court but you don't care since you have the writ!  Tenants rarely show up at County Court since they will lose and don't want to spend the money.  They just wanted more free rent.  And you will usually have them out of the house before the County hearing. 

TIP #2

Work with the Constable to time his posting of the Notice to Vacate.  Try your best to get a Friday posting and a Monday eviction.  If you have to wait an extra week to get this timing by the Constable it is wise to do so.  Why?  The tenant will know nothing about your getting the writ.  The Constable's posting will be his first alert.  But it will be too late for him, if he's sophisticated with an attorney, to get his attorney to go to court for a temporary restraining order to stop you.  The court is closed on the weekend during his vacate period!

TIP #3 FOR FORECLOSURE PROPERTIES 

Tip #1 above will not work for you if you bought a foreclosure property and need to get people out.  You need a rental agreement so that the people must pay 1 month's rent to the court if they appeal eviction.   The JP court will not require rent for a foreclosure (the County Court will allow a rent claim for a foreclosure).

So here's what I do:  I have a simple 2 page lease roughly based on a short term TREC seller lease back agreement, but significantly improved.  I then get the occupant to sign it by offering a very low lease amount for a short term (usually a month or so) and no deposit.  I also give them generous time, as noted in the lease, to pay the small lease amount so they don't have to pay anything at lease signing.  This takes away their excuses for putting off signing even if they never intend to pay.  They get rid of me without having to pony up.

If they don't pay the small lease payment on time when due (usually a week or so) they are in default and the lease terminates.  If they do pay and don't get out at the end they are holding over with no automatic renewal.  With default or hold over, the rent increases to market amount!  

Now when I  evict I am NOT evicting for foreclosure.  I am evicting for non payment of rent.  So now if they appeal eviction they must pay a significant amount to the court or I'll get my writ.

These tips have worked in real life for me and I've never heard them discussed by anyone, even the "old timers".  I hope they help you save $$ dealing with people wanting free rent at your expense.