An unfortunate by-product of increased foreclosure activity is the process of removing a former owner from the property through an eviction suit filed in the Justice Court. Many times this can be an emotional process, and one that is met with anger by the former owner, who frequently equates the new owner (purchaser at a Trustee's Sale) with the foreclosing lender.
NOTE: **This post does NOT address the process, procedure or law pertaining to evicting a tenant who occupies a foreclosed property. Federal law applies, in part, to that circumstance. In the future, I will post a separate article to discuss the process for evicting tenants of foreclosed former owners**
First, it is important to accurately characterize the former owner's status with regard to possession of the property. Texas Property Code Section 24.002(a)(2) provides that a person commits a forcible detainer if (after refusing to surrender possession on demand), that person:
"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."
Next, having characterized the former owner, it is essential that proper, written demand for possession be made in accordance with Texas Property Code Section 24.005. This demand must be made by "a person entitled to possession of the property" (this means the new owner or his agent or manager).
Since the occupant (former owner) is a "tenant at will or by sufferance" under the express provisions of Section 24.002(a)(2), the party entitled to possession must give the former owner at least 3 days' written notice to vacate before an FE & D / Eviction suit can be filed. See Texas Property Code Section 24.005(b).
Thereafter, the eviction suit is treated like any other. The former owner generally has no special rights, and is not treated differently from any other tenant at sufferance.
