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

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.

Explosives found in home of Columbus, Ohio man facing eviction

Trey Wilson, San Antonio, Texas Eviction Attorney wrote: From the Columbus Dispatch:

Explosives found in North Side home of man facing eviction, deputies say

Franklin County [Ohio]  deputies seeking to evict a man from his North Side [Columbus] home yesterday say they found five explosive devices inside the house.

In rambling writings on the walls and ceilings of his house at 917 Carolyn Ave., Mark A. Kulis claimed to be a “sovereign citizen,” believing he isn’t obligated to pay taxes or follow most laws, said Sheriff Zach Scott.

Also scribbled on his walls were names of politicians, including President Barack Obama and [Ohio] Gov. John Kasich.

Deputies waited until Kulis left his home yesterday morning to deliver eviction papers, Scott said. They decided not to confront Kulis at his home because they had received word that he could be dangerous, Scott said.

When deputies went to the home, there also was a probate warrant pending for Kulis, ordering him to be taken to NetCare for mental-health treatment.

When deputies got inside Kulis’ home, they found four explosive devices in a bedroom closet. The oven also was booby-trapped with an explosive, Scott said.

The Franklin County bomb squad was called to detonate the devices, which was completed safely. Several houses around the property were evacuated during the process.

Kulis, 55, was found with a loaded Colt .38-caliber revolver when he was arrested around 8 a.m. about a half-mile from his house at a car wash at Oakland Park Avenue and Maize Road, according to a complaint filed in Franklin County Municipal Court. He is charged with carrying a concealed weapon and manufacturing dangerous ordnance, both felonies, Scott said.

He was in the Franklin County jail last night and is scheduled to make his first appearance in court this morning.

83 Year Old New Hampshire Woman Facing Eviction

San Antonio Eviction Lawyer - Bexar County Eviction Attorney Trey Wilson wrote:  Here's an eviction story from New Hampshire that is making national news.

83-year-old NH woman awaits court eviction ruling

By LYNNE TUOHY, Associated Press |

ALSTEAD, N.H. (AP) — Shelley Crosby — with no legal training but plenty of passion — stood before the justices of New Hampshire's highest court arguing why her 83-year-old mother should not be evicted from the modest Alstead trailer she has called home for nearly 30 years.

"Thank you for giving me this opportunity to fight for my mom," she began at the November hearing.

Crosby, who researched the Supreme Court's rules at the library because she doesn't have a computer, hopes for a reprieve for her mother, Leona Berger, in her two-year battle with the cooperative that operates the 20-unit trailer park.

The justices did not say when they would issue a ruling in the case that is the talk of this small town of 2,000 residents just north of Keene.

The board of selectmen even held up approval of a $400,000 grant for a well system at the trailer park for nearly half a year hoping to leverage a deal with the Well Hill Cooperative to keep Berger in her home. The board abandoned that fight this week.

"I thought I had the opportunity to use the bully pulpit a little," board Chairman Mike Jasmin said Tuesday. He said all he asked is that the cooperative give Berger the opportunity to buy the trailer she has restored and rented for more than 28 years.

"Nobody's asking for Leona to get a free ride, just tell her the price of admission," Jasmin said.

Berger's ordeal began in August 2011, when she received notice that the board was going to increase her rent from $400 to $900. Crosby became her mother's advocate and negotiated the rent to $575. Berger had to sign a lease for the first time — a lease the board opted not to renew a year later. They sent an eviction notice instead, effective September 2012.

Crosby and her mother hired a lawyer to fight the eviction at the district court level, where a judge ruled the board had the right to obtain and sell the rental property. Crosby took over when their lawyer declined to appeal the ruling.

The Supreme Court at first rejected her petition to appeal, but she successfully filed a motion for reconsideration in March

At the hearing, Supreme Court justices were incredulous that the cooperative's board of directors first tried to more than double Berger's rent, then sent her an eviction notice without giving her an opportunity to buy the trailer or extend her lease. The lawyer for the cooperative's board of directors said it was a business decision.

"They can't sell it with her in it," lawyer William Pribis told the justices at the Nov. 13 hearing.

"They could sell it to her — that would be very efficient," said Chief Justice Linda Dalianis.

Robert Phinney, chairman of the Well Hill board of directors, said media reports that he wants Berger out of the park are "totally off-base."

"It's a business decision, so the park doesn't have responsibility for taking care of the house anymore," Phinney said Tuesday. He wouldn't say why the board hasn't offered Berger a chance to buy the house.

Crosby says the board is "bullying" her mother.

"I don't think Rob Phinney ever, ever anticipated he was barking up the wrong tree when he started barking up mine," Crosby said.

Crosby said Tuesday the stress is making her mother ill.

Berger — seated in her living room weeks after the arguments — said the legal fight "has taken years off my life. That's what makes me want to scream."

Berger and her husband, Bernard — a tractor-trailer driver — transformed the trailer's lot into a landscaped lawn and refurbished its dilapidated interior, Berger said. When he died 14 years ago, it reinforced her attachment to her home.

"We bought everything to fit this house," she said. "It's almost like I've been here forever."

Requirements for Notice to Vacate - Notice to Quit

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

Typically, an eviction may not proceed in Texas unless and until a proper Notice to Vacate has been delivered to a tenant, squatter or other occupant in possession of real property.

Section 24.005 of the Texas Property Code  governs notices to vacate (sometimes called a "Notice to Quit," "NTV" or "NTQ").  That section is actually called "Notice to Vacate Prior to Filing Eviction Suit," and could be accurately characterized as a jurisdictional statute because it requires delivery of a proper notice before a suit can be filed.

At the time of hearing /trial in the eviction suit, the Judge will ask to see a copy of the NTV and expect some evidence concerning the time and manner of its delivery. In San Antonio's eviction courts (the Bexar County Justice of the Peace courts), Judges routinely DISMISS cases where the landlord is unable to demonstrate compliance with the notice requirements of Section 24.005.  

Section 24.005 also prescribes the contents, time and manner of delivery of the Notice to Vacate to the tenant, or other occupant of the property, including persons who have entered the property without the consent of the person in actual possession of the property or a tenant of the property (though in these "forcible entry" cases notice can be oral).

Generally, where a tenant occupies a property under an unexpired written or verbal Lease Agreement, the requirements of the Notice to Vacate are:

1.  Written Notice;

2.  Delivered to the Tenant at least 3 days before an eviction suit is filed; and

3.  Delivered by mail (regular, registered or certified) or in person (by personal delivery to the tenant or any person 16 or over who resides at the premises AND affixing the notice to the INSIDE of the main entry door) at the premises in question. 

These requirement change if the lease is expired and the tenant is "holding over," or where the Lease provides for a longer notice period, or in instances where there is no mailbox (and a keyless bolt device, alarm system or dangerous animal).

By Popular Demand: LINK TO NEW TEXAS EVICTION RULES

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

As I have written before, a new set of Rules of Procedure apply in Texas eviction cases (as of 8/31/13).  The Rules typically apply to all cases pending and/or filed on or after 8/31/13.

Here is a link to the new Rules.

Evicting a Former Owner Following a Foreclosure and Trustee's Sale

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

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.