Check out My New San Antonio Evictions Attorney Website

San Antonio Eviction Lawyer - Bexar County Eviction Attorney - Trey Wilson Attorney in San Antonio, Texas wrote:

I'm proud to announce the launch of my new website dedicated to my practice as a San Antonio Evictions Attorney.  Come visit at www.SanAntonioEvictionLawyer.com

Thanks in advance for stopping by.

Pro Bono Spring Break Gives Students a New View on Poverty and Poverty Law

 Trey Wilson San Antonio Texas Real Estate Attorney, Trey Wilson Real Estate Lawyer in San Antonio wrote: As a lawyer representing landlords and property managers in eviction suits, I am frequently exposed to the human cost of displacement.



In many situations the loss of occupancy rights result from poor choices; yet, sometimes life's challenges and generational poverty and unsophistication result in displacement. This article gives a poignant example and I am encouraged by the students participating in this program.



Pro Bono Spring Break Gives Students a New View on Poverty and Poverty Law

New York Times Book Review of Evicted: Poverty and Profit in the American City

San Antonio Eviction Lawyer - Bexar County Eviction Attorney - Trey Wilson Attorney in San Antonio, Texas wrote:

From the New York Times Review of Books comes a review of  Evicted: Poverty and Profit in the American City.   

This book by Matthew Desmond, a Harvard sociologist, is a collection of stories about evictions and poverty plaguing 8 families in Milwaukee.  According to the NY Times review, one of the book's main points is "that the evictions aren’t just a consequence of poverty but also a cause. Evictions make kids change schools and cost adults their jobs. They undermine neighborhoods, force desperate families into worse housing, and leave lasting emotional scars. Yet they have been an afterthought, if that, in discussions of poverty."

I found the book for sale on Amazon. I plan to pick up a copy of the book, as my job as a lawyer who represents managers and landlords in eviction cases may have the unintended effect of insulating me from a full appreciation of the social and psychological impact of being evicted.

Read the full NY Times Review here.

Check Out my Video Short for San Antonio Eviction Lawyer

San Antonio Eviction Lawyer - Bexar County Eviction Attorney - Trey Wilson Attorney in San Antonio, Texas wrote:

"Retaliation" As a Defense to Eviction

San Antonio Eviction Lawyer - Bexar County Eviction Attorney - Trey Wilson Attorney in San Antonio, Texas wrote:

Chapter 92 of the Texas Property Code prohibits retaliation by a landlord against a tenant. See TEX. PROP. CODE § 92.331.  Section 92.331(a) provides in part that: 

"[a] landlord may not retaliate against a tenant by taking an action described by Subsection (b) because the tenant. . . in good faith exercises or attempts to exercise against a landlord a right or remedy granted to the tenant by lease, municipal ordinance, or federal or state statute. . . ." 

Subsection (b) provides that the landlord 

"may not, within six months after the date of the tenant's action under subsection (a), retaliate against the tenant" by taking certain actions including filing an eviction proceeding or "engaging, in bad faith, in a course of conduct that materially interferes with the tenant's rights under the tenant's lease." 

See TEX. PROP. CODE ANN. § 92.331(b)(1) & (b)(5)

When a landlord is determined to have filed an eviction action in retaliation for legal conduct of a tenant (as described in the statute), the tenant may recover a civil penalty and attorneys' fees against the landlord. 

Further, retaliation may be asserted by a tenant as an absolute defense in a suit for  eviction.  See TEX. PROP. CODE ANN. § 92.335. 

Crafty tenants often allege retaliation because of the powerful and absolute of this defense. However, under Section 92.332(b), an eviction or lease termination does not constitute retaliation where the tenant is delinquent in rent when the landlord gives notice to vacate or files an eviction action. TEX.PROP.CODE ANN. § 92.332(b)(1) ("an eviction is not retaliation when "the tenant is delinquent in rent when the landlord gives notice to vacate or files an eviction action." Hernandez v. Gallardo, No. 08-12-00178-CV, 2014 Tex. App. LEXIS 11878, at *12-13 (Tex. App.-El Paso October 29, 2014, pet. denied). 

That is, section 92.332 expressly permits the landlord to file an eviction proceeding for delinquent rent or other material breaches of the lease as provided in section 92.332. See id., §§ 92.331(b)(1) and 92.332.  Accordingly, where a tenant asserts the affirmative defense of retaliation, an eviction court should consider the following:

(i)  the timing of the landlord's issuance of the lease termination or notice of eviction; and

(ii)  the status of the tenant's payment obligations at that time.

If the landlord can demonstrate that the tenant owed rent or was otherwise in default at the time that the notice to vacate is issued, then the tenant most often cannot carry his burden under the affirmative defense of retaliation.  See Moore vs. Hurtado, __ S.W. 3d Memorandum Opinion -- (Tex.App. -- Amarillo  June 16, 2015)

RAISING A "TITLE DISPUTE" DOESN'T ALWAYS GET TENANTS OUT OF EVICTION HOT SEAT

San Antonio Eviction Lawyer - Bexar County Eviction Attorney - Trey Wilson Attorney in San Antonio, Texas wrote:

Some tenants facing eviction (and their lawyers) are savvy and all-too-familiar with the tricks of the trade that can be wielded to delay and obstruct a landlord's recovery of possession of a rental property.

One of the most frequently employed methods of subverting an eviction proceeding is the assertion by a tenant of a "title dispute" concerning the rental premises. In these cases, the tenant or occupant will allege -- often in very general and ambiguous terms -- that he or she maintains some type of ownership interest in the rental premises. Such claims to title most frequently arise in those circumstances where there exists no written lease, and there is a special relationship (family, romantic, employer/employee, etc.) between the record title owner (the landlord) and the person facing eviction (the tenant).

In some cases, the tenant will respond to the eviction suit (filed by the landlord in Justice Court) by filing a new suit in District Court alleging some claim to title. By doing this, a tenant ostensibly creates an "issue of title" to the property made the subject of the eviction proceeding.

Under Texas law, a Justice Court lacks the jurisdiction to resolve title disputes or make any determinations of title/ownership of real property.   Accordingly, the tenant will appear at the  eviction trial and argue that the Justice Court lacks jurisdiction to proceed because title is at issue.

This strategy used to be very effective, and has derailed many eviction proceedings because most judges are very careful not to exceed their jurisdiction.  However, like most other legal ploys and dilatory tactics, the fabricated "issue of title" strategy has been overplayed by tenants, and decisions from Texas courts of appeals have served to limit the effectiveness of this argument.

Since at least 2001, Texas courts have recognized that every assertion of a title dispute by a tenant does not divest the Justice Court of jurisdiction to determine rights of possession through an eviction Judgment.  The "granddaddy" case discussing the dichotomy of title vs. possession is Rice vs. Pinney, which arises out of the Dallas, Texas (5th) Court of Appeals. 

In Rice, and in several subsequent cases (from various Texas courts of appeals) that follow its holding, the Court held that not all cases require a Justice Court to determine title in order to determine the right to possession. 

More succinctly, the Rice Court found that "a justice court or county court at law is not deprived of jurisdiction merely by the 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" and "Thus, it is only when the justice or county court must determine title issues that it is without jurisdiction to adjudicate a forcible detainer case."

Since Rice, numerous courts have determined that the right of superior possession may be resolved without determining title, and that a request for eviction can be considered (under the doctrine of "concurrent jurisdiction") even when a district court has been asked to determine title.

As stated above, judges are typically reluctant to exceed the jurisdiction conferred upon them by law. As such, a skilled attorney representing the landlord in an eviction proceeding will be prepared to educate the Justice Court judge about the holding in Rice and its progeny.

EVICTION SUITS MUST BE FILED IN JUSTICE COURT BUT ARE SUBJECT TO AUTOMATIC APPEAL TO COUNTY COURT

San Antonio Eviction Lawyer - Bexar County Eviction Attorney - Trey Wilson Attorney in San Antonio, Texas wrote:

A relatively new series of rules located within Chapter 500 of the Texas Rules of Civil Procedure govern all claims filed in the Justice Courts. Among the different classes of claims are eviction or "forcible entry and detainer" suits.

Section 24.004(a) of the Texas Property Code provides that exclusive jurisdiction for eviction suits lies in the Justice Courts:

Except as provided by Subsection (b), a justice court in the precinct in which the real property is located has jurisdiction in eviction suits. Eviction suits include forcible entry and detainer and forcible detainer suits. A justice court has jurisdiction to issue a writ of possession under Sections 24.0054(a), (a-2), and (a-3).

Given this jurisdictional requirement, (which is also reflected in Section 27.031(a)(2) of the Texas Government Code) eviction suits must originate and be filed in the Justice Court in the County and precinct where the rental or other contested property is located.

However, unlike most other types of lawsuits, evictions (and other small claims proceedings) are subject to an automatic appeal to the County Court. Texas Rule of Civil Procedure 510.9(a) provides:

A party may appeal a judgment in an eviction case by filing a bond, making a cash deposit, or filing a sworn statement of inability to pay with the justice court within 5 days after the judgment is signed.

By law, these appeals are de novo, meaning "new" or "as if the trial in the Justice Court never occurred." TRCP 510.10(c) provides:

The case must be tried de novo in the county court. A trial de novo is a new trial in which the entire case is presented as if there had been no previous trial. The trial, as well as any hearings and motions, is entitled to precedence in the county court. 

In practical terms, the above means that:

• All eviction suits must originally be filed in Justice Court;
• Either party to a Judgement entered by the Justice Court may appeal by following specified procedures;
• The appeal is taken to the County Court sitting in the same county as the Justice Court being appealed-from;
• Trial in the County Court is "new," and the evidence, testimony and Judgment arising from the original Justice Court proceeding are irrelevant.

The Case Against the Right to Jury Trial in Texas Eviction Suits

San Antonio Eviction Lawyer - Bexar County Eviction Attorney - Trey Wilson Attorney in San Antonio, Texas wrote:

Although eviction cases, like most other civil cases, include a right to jury trial, my experience has been that this right is abused more often than not by tenants seeking unwarranted delay of the inevitable. After handling hundreds of eviction trials and appeals on behalf of landlords, I am convinced that the right to trial by jury should be eliminated (or severely abridged) in eviction cases. This may not be a popular viewpoint, but I believe it has merit.

By design, eviction cases are limited, with "the entitlement to actual and immediate possession" of certain premises being the sole issue to be determined by the court. Proof of that right is established on very specific evidence, which is usually documentary in nature (a lease, deed, etc. and a written notice to vacate). Frequently, absolutely no "fact" issues exist in an eviction lawsuit. That is, the only issues to be decided at trial are issues of "law," which are to be determined by a judge.  

NOTE: Fact issues encompass matters of credibility, but not strictly legal issues, such as whether certain facts establish a claim or defense.

The Seventh Amendment (Amendment VII) to the United States Constitution  codifies the right to a jury trial in certain civil cases, and inhibits courts from overturning a jury's findings of fact. The text of the 7th Amendment provides:

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

 Texas Rule of Civil Procedure 510.7(b) expressly extends the right to trial by jury to eviction cases:

Any party may file a written demand for trial by jury by making a request to the court at least 3 days before the trial date. The demand must be accompanied by payment of a jury fee or by filing a sworn statement of inability to pay the jury fee. If a jury is demanded by either party, the jury will be impaneled and sworn as in other cases; and after hearing the evidence it will return its verdict in favor of the plaintiff or the defendant. If no jury is timely demanded by either party, the judge will try the case.

Thus, the law is clear: if a party to a civil eviction case timely files a request, he is entitled to trial by jury.

However, since Rule 510.7 authorizes a jury to be demanded only 3 days before trial (by contrast, Rule 216 generally requires a jury demand to be filed 30 days before trial in higher Texas courts), it is fair to say that most Texas Justice Courts cannot be prepared to impanel a jury upon such short notice. A jury demand filed only 3 days in advance invariably delays an eviction trial and allows a tenant to remain in possession of premises while the Court scrambles to summon jurors and set aside time for the lengthy process of juror selection and trial.

Since a Plaintiff (usually landlord) can request a jury at the time that the eviction case is initiated, filing a last minute jury demand is almost exclusively within the province of the defendant/tenant.    "Professional tenants" and lawyers who frequently represent tenants have been known to use jury demands solely to "buy time" during which a Defendant/tenant remains (for free) in a property which they have no legal right to possess. These tactics pervert the spirit of the 7th Amendment, and call into question the fundamental fairness of the right to jury trial in eviction cases.

New Eviction Laws to Take Effect Soon -- Important Changes to Eviction and Eviction Appeals Process Are Coming

San Antonio Eviction Lawyer - Bexar County Eviction Attorney - Trey Wilson Attorney in San Antonio, Texas wrote:

As happens in every odd year, the Texas Legislature conducted its legislative session in 2015. This session (the 84th) resulted in a few new laws that directly impact evictions and eviction appeals in Texas. The following are summaries of the House Bills that directly impact eviction suits.

HB 1853:  Effective 9/1/15 -- H.B. 1853 amends current law relating to the removal of a tenant's personal property after a writ of possession has been issued in an eviction suit.  Specifically, Section 24.0061, Property Code, is amended by adding a new Subsection (d-1), which authorizes a municipality to provide, without charge to the landlord or to the owner of personal property removed from a rental unit under a writ of possession, a portable, closed container into which the removed personal property shall be placed by the officer executing the writ or by the authorized person. The municipality is further authorized to remove the container from the location near the rental unit and dispose of the contents by any lawful means if the owner of the removed personal property does not recover the property from the container within a reasonable time.

HB 1334:  Effective 1/1/2016 -- This new law amends Chapter 24 of the Texas Property Code and seeks to provide a process for ensuring the validity and financial integrity of appeal bonds filed in eviction cases, and to challenge the sufficiency of the bond posted by a tenant who appeals an eviction Judgment. 

HB 3364: Effective 1/1/2016 -- This Bill is aimed at the problematic wait that current law allows commercial tenants to remain in the property after final judgment of eviction has been issued. H.B. 3364 seeks to clarify that a final judgment of a county court in an eviction suit may not be appealed on the issue of possession unless the premises are for residential purposes only. 

When Are Eviction Appeals Set for Trial In Bexar County Court?

San Antonio Eviction Lawyer - Bexar County Eviction Attorney - Trey Wilson San Antonio Attorney wrote:

Unlike the standard procedure of the clerk assign eviction suits for trial in the Bexar County Justice Courts, trials upon appeals of eviction judgments are NOT automatically set in the Bexar County Court at Law.

Instead, eviction appeal trials are held only upon written request filed with the Court by EITHER the owner/ landlord/ appellee OR the party in possession (usually the tenant or former owner who refuses to vacate following foreclosure). As with other civil non-jury trials, eviction appeals are heard only on Thursdays and Fridays of each week in the Presiding Court.

A party to an eviction appeal who needs the case resolved by trial is well-advised to contact an experienced evictions attorney who understands the Court process and the law.

San Antonio Apartment Tenants told to stop paying rent, then to Vacate?

San Antonio Eviction Lawyer - Bexar County Eviction Attorney -- Trey Wilson San Antonio wrote: Here's an interesting eviction/ landlord-tenant story from KSAT.com

Tenants instructed to stop paying rent being forced from apartments

SAN ANTONIO - South Point Oaks Apartments residents are baffled about the future of their living situation after receiving notices the residential property has been sold and that they must leave.

“It's where I call home for right now,” said James Prince, who has lived at the apartments near Loop 410 and Babcock Road for three years.

On May 7, tenants received a notice from Fairway Properties saying the apartments had changed ownership. The letter instructed residents to “refrain from paying rent to anyone until you receive a notice from the new owner or management company.”

On May 24, tenants received an eviction notice stating they had 72 hours to leave.

“Three weeks ago you tell us stop paying rent and we don't pay rent,” said Prince. “Now you're telling us we have to leave."

Read the full story HERE

Foreclosure Under a Deed of Trust Permits Resolution of Immediate Possession Without resolving Title

San Antonio Eviction Lawyer - Bexar County Eviction Attorney Trey Wilson wrote:

The existence of title "issues" or breaks in the title chain of purchasers at a foreclosure sale are not necessarily fatal in a post-foreclosure eviction case. This is the case because in post-foreclosure evictions, title issues need not be resolved before the issue of possession can be determined.

Rather, a foreclosure under a deed of trust establishes a landlord and tenant-at-sufferance relationship between the parties, under the express language of the Deed of Trust (usually paragraph 22).  Based on this language and the contractual agreement contained in the Deed of Trust, there is an independent basis to determine the issue of immediate possession without resolving the issue of title to the property.

Thus, where a deed of trust permits nonjudicial foreclosure and where such foreclosure (under a deed of trust contractually creates a landlord and tenant-at-sufferance relationship between the foreclosed party and the purchaser at a Substitute Trustee's sale, it is not necessary to resolve a title dispute to determine the right of immediate possession. See Jaimes, 2013 Tex. App. LEXIS 14615, at *13; Hornsby, 2012 Tex. App. LEXIS 6880, at *7 ("Although [appellant] challenges the chain of title to the property, `the merits of the title shall not be adjudicated' in a forcible detainer action." (quoting former Tex. R. Civ. P. 746)); Stephens v. Federal Home Loan Mortg. Corp., No. 02-10-00251-CV, 2011 Tex. App. LEXIS 3056, at *5 (Tex. App.-Fort Worth Apr. 21, 2011, no pet.) (mem. op.) (holding Federal Home was not required to "connect the dots" between original lender and mortgage servicer regarding title); Deubler v. Bank of New York Mellon, No. 02-10-00125-CV, 2011 Tex. App. LEXIS 2644, at *3-4 (Tex. App.-Fort Worth Apr. 7, 2011, no pet.) (mem. op.) (holding party was not required to present evidence establishing linkage between deed of trust and substitute trustee's deed to establish superior right to possession); Kaldis v. Aurora Loan Servs., No. 01-09-00270-CV, 2010 Tex. App. LEXIS 4831, at *7 (Tex. App.-Houston [1st Dist.] June 24, 2010, pet. dism'd w.o.j.) (mem. op.) (noting that purchaser to whom property was conveyed by substitute trustee's deed was not required to prove merits of its title to prove superior right to possession in its forcible-detainer action). 

Eviction in Texas…It's Not Just For Tenants

San Antonio Eviction Lawyer - Bexar County Eviction Attorney Trey Wilson wrote:

Eviction lawsuits are the mechanism by which Texas courts determine who has the right to occupy and possess property.  This determination does NOT require that the parties be in a landlord-tenant relationship.

Many property owners are surprised to learn that an eviction case is the proper (and legal) way to remove any occupant from property, whether or not there is a lease.

In the past, we have handled eviction cases where the party to be removed is:

-A former romantic partner (boyfriend or girlfriend);

-A family member (parent, adult child, sibling, niece/nephew etc.) or friend who has overstayed their welcome;

-Squatters with no lawful claim to possession;

-Former owners who have lost the property through foreclosure or a Substitute Trustee's sale; and

-Tenants who have held over beyond the end of a lease term.

  

A proper Defendant in an eviction lawsuit is any occupant (whether in naked possession or not) whose right to possession never existed or has ceased.  How that occupant came to occupy the property is not the controlling factor. Instead, the present right of possession is the issue in an eviction case.  

While the nature of the unwelcome occupant's current claim to possession does affect some of the procedure in an eviction case (the type and timing of notice to vacate, etc.) it is not jurisdictional.  In fact, Texas courts have held very clearly that proof of a landlord-tenant relationship is an evidentiary issue in an eviction case, and not a jurisdictional one. See Tex. Prop. Code § 24.002; Academy Corp. v. Sunwest N.O.P., Inc., 853 S.W.2d 833, 834 (Tex. App.-Houston [14th Dist.] 1993, writ denied). 

Relief From the Tenant Who Abuses the Pauper's Affidavit Process

San Antonio Eviction Lawyer - Bexar County Eviction Attorney Trey Wilson wrote:

It is a sad reality that more than a few tenants know how to play the "eviction game." They exploit due process protections and procedural nuances of the Texas court system for the purpose of delaying the inevitable, and maximizing rent-free occupancy of someone else's property.

I have personally handled the eviction of the same individual from two different properties owned by unrelated landlords who don't even know each other. In other instances, I have encountered tenants who have been Defendants in five or more eviction lawsuits, and have appealed every one. 

One characteristic that most of these "professional evictees" have in common is a thorough understanding of the "Pauper's Affidavit" procedures existing under Section 24.0052 of the Texas Property Code. This Section provides:

Sec. 24.0052. TENANT APPEAL ON PAUPER'S AFFIDAVIT.  

(a) If a tenant in a residential eviction suit is unable to pay the costs of appeal or file an appeal bond as required by the Texas Rules of Civil Procedure, the tenant may appeal the judgment of the justice court by filing with the justice court... a pauper's affidavit sworn before the clerk of the justice court or a notary public that states that the tenant is unable to pay the costs of appeal or file an appeal bond. 

(e) If the justice court approves the pauper's affidavit of a tenant, the tenant is not required to pay the county court filing fee or file an additional affidavit in the county court under Subsection (a). 

This statute (which corresponds with Texas Rule of Civil Procedure 510.9(c)) does allow the landlord to contest the tenant's claimed status as a "pauper."  However, such a challenge further delays final resolution of the case -- even where the tenant is appealing a Judgment (including a Judgment by Default) requiring them to surrender possession of the property.  Further, in my experience, Justice Courts give tenants the benefit-of-the-doubt regarding their purported financial condition, and landlords rarely prevail in convincing the court that a tenant is not a "pauper."

A Pauper's Appeal is particularly frustrating to the landlord in a non-payment of rent  eviction case because the tenant: (i) hasn't bothered to pay rent; (ii) has already lost at trial in the justice court; and (iii) will certainly lose on appeal; BUT is permitted to remain in the property whole processing their FREE appeal!!!!  

The Texas Rules of Procedure recognize this fundamental unfairness, and the inherent incentive of the appealing tenant to delay the appeal since he is theoretically living for free while it is pending. Accordingly, Rule 510.9(c)(5) requires a tenant appealing a Non-Payment of Rent Eviction Judgment to pay rent as it comes due while the appeal is pending.  Failure to pay rent will -- upon proper motion from the Landlord and Order of the County Court -- result in the tenant losing the right to remain in possession while the appeal is pending.

If you are a landlord whose residential tenant is abusing the Pauper's Affidavit process by not paying rent during an appeal, you should contact an experienced eviction lawyer to bring this default to the Court's attention.

When 3 days is Not Enough Notice - Notice to Vacate/Notice to Quit

San Antonio Eviction Lawyer - Bexar County Eviction Attorney Trey Wilson wrote:

Usually by the time a landlord brings an eviction matter to me,  she has already issued a Notice to Vacate to the tenant. Most often, this Notice provides the tenant with 3 days to move, failing which, they will be evicted.

Unfortunately, however, 3 days is not always sufficient time for a notice to vacate under Texas law.

Texas Property Code Section 24.005 provides the requirements of a Notice to Vacate. This law holds:

(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.

(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. 

Obviously, this statute does NOT apply to the following non-exhaustive set of circumstances:

• A monthly (month-to-month) tenant who has not breached;
• Some former owners who have lost the property to foreclosure; or
• A tenant who has not breached a lease agreement or held over (but for who the landlord desires to terminate occupancy).

Since proper notice to vacate is JURISDICTIONAL, a court CANNOT order a tenant to vacate or surrender possession if a landlord has not supplied proper notice. As such, if the notice required in a given landlord-tanant or occupancy situation is unclear, the property owner should contact an experienced eviction lawyer.