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.

Notice to Vacate is an Essential Component of a Successful Eviction

San Antonio & Bexar County Eviction Lawyer Trey Wilson wrote:

An essential element of any eviction proceeding is strict compliance with the statutorily-required notice to vacate before filing the forcible-detainer action. See Tex. Prop. Code  § 24.002(b); § 24.005. 

Issuance and delivery of a properly drafted notice to vacate is  required by statute, and, is  therefore  "mandatory and exclusive and must be complied with in all respects"  Employees Ret. Sys. of Tex. v. Blount, 709 S.W.2d 646, 647 (Tex. 1986).  In fact, delivery of a statutorily- sufficient written demand for possession is an essential element of forcible detainer, without which, a valid eviction Judgment cannot be issued. Murphy v. Countrywide Home Loans, Inc., 199 S.W.3d 441, 445 (Tex. App.-Houston [1st Dist.] 2006, pet. deniedThus, the very first step in any eviction proceeding is the ); Kennedy v. Andover Place Apartments, 203 S.W.3d 495, 497 (Tex. App.-Houston [14th Dist.] 2006, no pet.) (landlord must strictly comply with section 24.002 requirements which state that landlord must make written demand for possession in compliance with section 24.005 requirements for notice to vacate).

Thus, the very FIRST STEP in any eviction proceeding is delivery of a properly drafted NOTICE TO VACATE, which complies with all requirements of section 24.005 of the Texas Property Code. Failure to meet any of the requirements of the Notice -- or the manner of delivery -- can result in the dismissal of the eviction suit.

Proper Notice to Vacate is Essential for Eviction Success

San Antonio Eviction Lawyer Trey Wilson wrote:

Most landlords are understandably reluctant to hire a lawyer to deal with a problem tenant. Many times, the tenant is already not paying rent, and the landlord is losing money by the day. Naturally, hiring a lawyer only adds to the Lessor's expense, and exacerbates the non-producing character of a rental property.

For this exact reason, many landlords come to me as a final straw, and only after they have done everything in their power to handle the tenant themselves. Frequently, Landlords have already sent or delivered to the Tenant a "homemade" Notice to Vacate or Notice to Quit. Unfortunately, in many instances, the Notice is defective, or was delivered in a manner that fails to comply with the strict requirements of the Texas Property Code. When this occurs, the process is delayed, so that I may provide proper notice to the tenant within the time required by law.

Failure to provide a tenant with a notice to vacate that contains the required warnings, or delivering the notice in a manner other than prescribed by law can be fatal to an eviction suit. Bexar County Judges frequently dismiss FE & D suits based upon improper Notices to Vacate. Dismissal results in the landlord having to restart the entire process, resulting in further delay, expense, and financial loss.

Because a landlord's success in an eviction suit is dependent upon the proper drafting, delivery and timing of a written Notice to Vacate, the importance of getting the Notice right should not be overlooked. If a landlord/lessor has doubts about the requisites of Notice, he should contact a lawyer experienced with evictions in the Justice Courts.