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.

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.

"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.

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. 

Whether a Tenant or Landlord, You Never Want to See This on Your Door!

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

Whether you're a Landlord or a Tenant in San Antonio, having a notice like this posted on your door by the Bexar County Sheriff means that your eviction lawsuit has not ended peacefully. 

Texas Property Code Section 24.0061 entitles a landlord who prevails in an eviction suit to a Writ of Possession, and requires that such writ order the officer executing it 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.

Eviction Lawsuits in San Antonio, Texas

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

If a tenant refuses to surrender possession of real property after a proper, written demand for possession by one entitled to such possession, the tenant commits a forcible detainer. TEX. PROP. CODE ANN. § 24.002 (West 2000); see Coinmach Corp. v. Aspenwood Apartment Corp., 417 S.W.3d 909, 915 (Tex. 2013); Kennedy v. Andover Place Apartments, 203 S.W.3d 495, 497 (Tex. App.—Houston [14th Dist.] 2006, no pet.). 

The purpose of a forcible detainer action (also known as an eviction lawsuit) is to determine who has the right to possession of the premises. Marshall v. Hous. Auth. of San Antonio, 198 S.W.3d 782, 785 (Tex. 2006); McGlothlin v. Kliebert, 672 S.W.2d 231, 232 (Tex. 1984). By law, a forcible detainer action must be filed in the Justice Court in the County and precinct in which the property is located.

“To prevail in a forcible detainer action, . . . the plaintiff must present sufficient evidence of ownership to demonstrate a superior right to immediate possession.” Dormady v. Dinero Land & Cattle Co., L.C., 61 S.W.3d 555, 557 (Tex. App.—San Antonio 2001, pet. dism’d w.o.j.); accord Rice v. Pinney, 51 S.W.3d 705, 709 (Tex. App.—Dallas 2001, no pet.). 

A plaintiff may demonstrate its superior right to possession by showing it is entitled to evict the tenant for cause, such as under the terms of the lease. See Hinojosa v. Hous. Auth. of Laredo, 940 S.W.2d 763, 765–66 (Tex. App.—San Antonio 1997, no writ); Barajas v. Hous. Auth. of Harlingen, 882 S.W.2d 853, 855–56 (Tex. App.—Corpus Christi 1994, no writ). In addition, a Plaintiff may demonstrate his ownership and right to possession by presenting a deed reflecting title to the property.