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). 

Fire Marshal Faces Federal Suit for Role in Evicting Woman on Son's behalf

San Antonio Texas Eviction Attorney Trey Wilson wrote:

(CN) - A Pennsylvania fire marshal must face claims that he helped a man evict his mother with 24 hours' notice, seal her locks and put her in a nursing home, a federal judge ruled.

Camilla Evans had resided and rented a property in Emsworth, Pa., for 50 years when the local fire marshal gave her 24 hours to vacate the premises, according to the complaint.

The eviction allegedly sprang from a family dispute over the distribution of an estate.

Evans said her son and daughter-in-law, David and Judith Evans, the lawful owners of the property at the time, had tapped the marshal to evict her. Though the trio tried to commit Evans to a nursing home on the basis of incompetence, their efforts proved unsuccessful, the complaint states.

David and Judith ultimately drilled in the locks to the home, leaving Camilla Evans and her daughter, Camilla Conners, unable to retrieve their possessions, and forcing them to live in a hotel since November 2012, according to the complaint.

 The mother and daughter later sued David, Judith, the borough and the marshal in federal court, claiming that they unlawfully seized and condemned Evans' property pursuant to an alleged custom or policy.

The complaint asserts claims for constitutional violations and due process deprivations under the Fourth, Fifth and 14th Amendments, as well as numerous state-law claims for conspiracy, breach of contract, unjust enrichment, conversion, trespass and invasion of privacy against the individual defendants.

U.S. District Judge Arthur Schwab refused to dismiss any part of the complaint last week for failure to state a claim.

Though the ruling gives only the last name of the fire marshal, a borough website states his full name as Michael Adams.

Schwab held that the complaint does "raise a reasonable expectation that discovery will reveal evidence of the necessary elements" and "provides adequate facts to establish 'how, when, and where,'" as set forth by the Supreme Court in Bell Atlantic Corp. v. Twombly in 2007.

 The complaint also shows a "plausible claim for relief," as required by the Supreme Court's decision in Ashcroft v. Iqbal in 2009, Schwab ruled. "Viewed in light of the foregoing pleading standards, this court finds that the allegations of the complaint, when taken as true, allow the court to draw a reasonable inference that the defendants are liable for the conduct and misconduct alleged, and that the complaint meets the standards as enunciated in Twombly and Iqbal," Schwab wrote.

After discovery, the defendants may raise the issues set forth in their motions to dismiss in a motion for summary judgment, the ruling states.

U.S. Government (HUD) Involved in Texas Transgender Eviction Case

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

This is one area they never taught us about when I was in law school many moons ago... From the Courthouse News Service:

Trans Housing Suit May Be Headed for Mediation

By ADAM KLASFELD 

(CN) - Efforts to settle transgender discrimination charges in Texas could scuttle a case whose precedent many hoped would plug an apparent loophole in the Fair Housing Act.

     In October, the Department of Justice filed what advocacy groups believe to have been the first lawsuit of its kind on behalf of Roxanne Joganik, a transgender woman who had been evicted with her partner Darlina Anthony from an RV park in Athens, Texas.

     The lawsuit alleges that landlord George Toone prohibited Joganik from wearing women's clothes because "there are children around the pool," and had said that her attire was "not the type of atmosphere we want to promote on private property."

     Toone handed Joganik a new set of rules later that month that did not apply anti-discrimination protections based on "sex" or "familial status," as mandated by the Fair Housing Act, the complaint states.

     Joganik said she refused to sign unless those protected classes were added.

     Toone started trying to evict the couple from the park in early June 2012, and his lawyer referred to Joganik by her birth name and another name she no longer used in a letter of eviction.

     "I have been informed that Mr. Pepos is a transgender [sic] who goes by the name Roxann Fanteal," the lawyer wrote, according to the complaint. "Mr. Pepos refused to leave the park despite being asked to do so."

     The letter demanded that Jagonik and Anthony leave the park "immediately," purportedly for nonpayment of rent. The couple allegedly replied that they had three more days to pay pursuant to their month-to-month agreement, but said they were refused the opportunity to do so.

     Although the U.S. Housing and Urban Development administrative action looked promising, the decks were allegedly stacked against the couple at the Justice of the Peace Court of Henderson County.

     "The judge presiding over the eviction action told Ms. Joganik not to talk about her fair housing case and to refrain from using the word 'transgender' in the court," the complaint states.

     Jagonik and Anthony were evicted on Aug. 18, 2012, according to the complaint.

     An HUD administrative judge authorized them to take the case to federal court on Sept. 4, 2012.

     More than a year later, the Justice Department followed through on filing the case, which sought an injunction restoring the couple's housing, barring discrimination against them and awarding them unspecified money damages.

     In a scheduling order last month, U.S. Magistrate Judge Nicole Mitchell slated a trial for Dec. 2, 2014, if the case were not resolved through mediation. She ordered the parties to name an agreed mediator, or cite "a reason why the case would not benefit from mediation" by Monday morning.

     In a brief proposal filed in the Eastern District of Texas hours before the deadline, Justice Department attorney Lori Wagner noted that it was the belief of the United States that "this case would benefit from mediation."

     The proposal asked the court to appoint Tyler, Texas-based lawyer Richard Grainger as a mediator.

     Wagner did not immediately reply to an email request for comment.

     Toone's attorney has not submitted a related filing, nor has he responded to an email inquiry.

     When the case originally was filed, Harper Jean Tobin, the director of policy of the Washington-based nonprofit National Center for Transgender Equality, said that she was not aware of any other case in which the federal government had gone to court over transgender housing discrimination.

     While the Fair Housing Act bars discrimination based on "sex" and "familial status," it does not explicitly mention gender identity or expression, but the HUD's website states that it interprets sex discrimination to include bias against nonconformity to gender stereotypes.

     Tobin previously called upon the Congress to clarify the Fair Housing Act.

     She has not returned a request to comment on the Justice Department's proposal to mediate the case.

Eviction Lawsuit Papers Must be Sworn/Verified

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

It is imperative that the Landlord's Petition filed in an eviction suit be sworn, with the Plaintiff or his agent testifying that the contents are true and correct.

This requirement is found in two places in Texas law, and failure to verify a Petition can result in dismissal of an eviction suit, which extends the period of time that a bad tenant can remain in the property.

First, Section 24.0051(a) of the Texas Property Code provides: "In a suit filed in justice court in which the landlord files a sworn statement seeking judgment against a tenant for possession of the premises and unpaid rent, [proper] service on the tenant... is procedurally sufficient to support a default judgment for possession of the premises and unpaid rent." 

The flip side of this coin is that, in the event that a tenant/defendant makes default in the eviction suit, an unsworn petition does not constitute sufficient evidence to support a Judgment. Rather, Judgment in those circumstances can only be supported by live, sworn testimony given by the Plaintiff/landlord.  Texas Justice Court judges are understandably irritated with the notion of having to accept testimony (and essentially conduct a trial) when the tenant didn't even bother to file an Answer or show up for Court. At least one Bexar County JP will not accept evidence from the landlord where the tenant makes default.

New Rule of Civil Procedure 510.3(a) also, very plainly, requires that eviction Petitions be sworn.

Why Defects in the Premises Are Usually Not a Good Defense for Tenants Facing Eviction

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

Frequently, tenants facing eviction will show up to Court with a litany of reasons why their failure to pay rent should be excused, and why they should be allowed to remain in the premises despite this default.  The argument usually goes something like this:

COURT:  Is it true, Mr. or Mrs. Tenant, that you have not paid rent in 3 months?

TENANT:  Well yes, but I have good cause.

COURT:  And what cause is that?

TENANT:  It's because the sink / toilet/ door / air conditioner/ (you get it) isn't working and I was told it would be fixed but it never was.  * Another common variant is that the carpet stinks or their is some insect infestation in the property*

COURT:  Did you ask the Landlord in writing to to fix the condition?

TENANT:  Well no, but I called four times and they never answer when I call /  Well no, but the Landlord knows it's broken/  No, but I was going to before I got served with a Notice to Vacate (

COURT:  Did you have the condition repaired?

TENANT:  No, but I have pictures to show you of how horrible the place is.

COURT:  I'm sorry but you are not excused from paying rent and I have no choice but to grant the Landlord's eviction request.

TENANT:  You didn't even look at my pictures / repair estimate/ dirty air filter.

At this point the freshly-evicted tenant usually storms off in a fit of anger, gets very emotional, threatens appeal, or does all 3.

In this situation, the Court cannot consider the Tenant's allegations about the condition of the property. This is because the only issue in an eviction suit (forcible entry & detainer action) is the right to actual possession of the premises. See Texas Rule of Civil Procedure 746.

While a Landlord's failure to keep the premises in a habitable condition may be a breach of the Lease, this breach is not the proper subject of an eviction suit.

Further, if a perceived defective condition of the premises does not has not been brought to the Landlord's attention in writing, and the Tenant has not (after sufficient notice and time) repaired the condition, that defective condition does not give rise to any affirmative defense that would excuse paying rent.

While the law (Chapter 24 of the Texas Property Code) does provide for certain "repair and deduct" remedies for the Tenant in certain instances, the procedure for implicating these remedies must be strictly complied with. Unless and until strict compliance has been demonstrated, the Landlord's perceived bad acts in maintaining the premises is not a good (or even feasible) defense for tenants facing eviction in Texas.