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.

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.

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.