What Do I Do If I’m Getting Evicted?

“My Landlord Says He Is Calling the Cops and Throwing Me Out!”

We get calls from potential clients that are concerned because their landlord is threatening to call the cops and have them tossed out of their rental place. None of us want to face this situation and you should always pay your rent on time to avoid this madness. But what if you are already in it and need to know what to do. Or what do you need to know about what your landlord has to do?

An eviction is a lawsuit filed by a landlord to remove persons and belongings from the landlord’s property. Texas law refers to this as a “forcible entry and detainer” suit. The proper way to start the eviction procedure when a tenant hasn’t paid rent is by terminating a tenant’s right to possession by giving a notice to the tenant. Non-payment of rent is the number one reason for eviction, but a landlord can also evict a tenant for staying past the agreed lease term.

Under Texas property laws (Tex. Prop. Code Ann. 92.019), a landlord must provide at least a one-day grace period before charging a tenant a late fee. But under state law, there is no grace period before a landlord can give a tenant an eviction notice for failure to pay rent. This means it is proper for a landlord to provide notice to evict the day after rent is due if not paid. Once a Notice to Vacate has been given, the tenant has three days to pay the rent (Tex. Prop. Code Ann. 24.005). The Notice to Vacate procedure is detailed in Tex. Prop. Code Ann. 24.005(f) and can be done in four ways:

(1) The landlord, or an agent of the landlord, can personally give the notice to the tenant or to someone who is 16 years or older who lives in the rental property.
(2) The landlord can post the notice on the inside of the front door of the rental unit. The landlord can only use this option if the landlord is able to enter the premises legally, ex. with a key.
(3) The landlord can mail a copy of the Notice to Vacate by regular mail, registered mail, or certified mail. If the landlord mails the notice, then the landlord needs to request a return receipt.
(4) If the rental property doesn’t have a mailbox to receive mail and the landlord can’t legally enter the rental unit to post the notice inside the front door, then the notice can be posted on the outside of the front door of the property. If the tenant has a dangerous animal, such as a guard dog, or an alarm system, that prohibits the landlord from entering the property, then the notice can be securely posted on the front gate or other visible portion of the main entry to the rental property.

What is important in eviction procedures is that the landlord not violate the Fair Housing laws, or retaliating in violation of the Texas Property Code. A landlord should wait for the tenant to move after the landlord asks them to leave, but if they refuse to move, then the landlord must file an eviction case with the Justice of the Peace court to get approval to remove the tenant. The landlord should bring evidence that the tenant has violated the lease, for nonpayment or whatever reason. Landlords should not take the matter into their own hands and force a tenant out of the home by themselves; a constable must supervise the actual eviction. http://texastenant.org/eviction.html

As a criminal defense attorney, I am concerned about something other than the proper method for getting tossed out of your crib. Some of the calls we get are because during an eviction process the angry landlord or the police officers from the Constables Office that show up to kick you out find something illegal during the process. You need to carefully read your lease papers and you will most likely find that your landlord can has reserved the right to enter your residence for a variety of reasons. So don’t leave illegal plant substances out in the open or growing in the closet for someone to find and drop a dime on you. I would never tell you to engage in illegal behavior but until our ignorant politicians see fit to legalize pot you need to keep your secrets a secret.

Also, you have to right to negotiate the landlord’s ability to enter your home before you hand over your first month’s rent and security deposit. You should confirm that you will always be given 48 hours notice before anyone enters your residence. You should also make arrangements with the landlord to have a small safe on your premises that is excluded from any lease agreement clause about your property being seized for non-payment. Be smart and learn the laws that can cause you problems in your lifestyle. Learn your Constitutional Rights before you need them at dwidudes.com and 420dudes.com so you don’t learn them the hard way.


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