"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.

What is the Statute of Limitations Period Within Which A Landlord Must Bring An Eviction Case in Texas?

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

Let's face it... some tenants deserving of eviction are allowed to remain in a given rental property for far longer than they should. Often they remain in place even after being served with a Notice to Vacate by either simply ignoring the notice and/or refusing to surrender possession of the property despite a landlord's demand that they do so.  From a logical standpoint, a landlord's inaction over a sufficient period of time should constitute a waiver of the right to pursue an eviction (FE &D) action, as the result of being time-barred.

After all, Texas Civil Practice and Remedies Code section 16.003 provides that a forcible detainer suit must be brought within two years, or, more succinctly, "not later than two years after the date the cause of action accrues." See Tex. Civ. Prac. & Rem. Code § 16.003(a). Thus, there exists a 2 year limitations period on FE & D/eviction suits.   However, this 2 year period BEGINS to run-on the date of accrual. As such, an event of "accrual" is the determinitive factor in considering the expiration of the limitations period for an eviction (and any other cause of action, for that matter).  

Notably, Texas Courts have held that a forcible-detainer action accrues each time a person refuses to surrender possession of real property after a person entitled to possession of the property delivers a proper written notice to vacate. See Federal Home Loan Mortg. Corp. v. Pham, No. 14-13-00109-CV,

2014 WL 5034638, at *5 (Tex. App.—Houston [14th Dist.] Oct. 9, 2014, no pet.) (new and independent cause of action for forcible detainer arises each time person refuses to surrender real property after person entitled to possession delivers proper written notice to vacate); Puentes v. Fannie Mae, 350 S.W.3d 732, 739 (Tex. App.—El Paso 2011, pet. dism’d) (subsequent forcible detainer action constitutes new and independent action to determine which party had superior right of immediate possession at time suit was filed).

Thus, under Tex. Prop. Code § 24.002 (defining a forcible detainer as a refusal to surrender possession of real property on demand...), each refusal to surrender possession of real property on written demand for possession constitutes a new forcible detainer.

Under a plain application of how Courts determine "accrual" of a landlord's claim for FE & D, it is clear that in order to start the limitations period anew (and avoid being time-barred from filing suit), an owner or landlord must simply issue a new Notice to Vacate that complies with Tex. Civ. Prop. Code § 24.005.  Each time that the tenant refuses to comply with such a notice by surrendering possession as demanded by the landlord, that tenant is subject to an FE & D suit, notwithstanding the passage of time from prior notices.

Eviction/Lease Dispute Breeds Multiple Litigations and New Ruling

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

Today the Fourth Court of Appeals issued a Memorandum Opinion in an ongoing lease termination dispute and related eviction proceedings that have bred numerous suits, appeals and litigations.  In its opinion, the San Antonio Court summarized the litigation saga as follows: "Over the past three years, the landlord/tenant dispute between these parties has given rise to two forcible detainer proceedings, one declaratory judgment action, and one still-pending appeal to this court." 

The issue decided today related to an appeal by Official Inspection Station, Inc. of a forcible entry & detainer (eviction) suit filed and won by AAA Free Move Ministorage, LLC following earlier forcible entry & detainer and declaratory judgment suits won by OIS, and for which OIS was awarded a money judgment.

The broader dispute relates to OIS' right of possession (and AAA's right of termination) under a written lease entered by and between OIS and the previous owners of the premises bought by AAA in August 2009. When AAA tried to terminate under that lease, OIS filed a declaratory judgment action against AAA in Bexar County District Court, asking the court to construe the rental agreement and declare that AAA did not have the right to terminate the lease on six months’ notice and that OIS was properly in possession of the property.

In March 2010, while the declaratory judgment action was still pending, AAA filed a “Complaint for Eviction” against OIS in the  Bexar County justice of the peace court because OIS refused to vacate the property. The court later entered a take-nothing judgment against AAA (essentially denying AAA's demand for possession). AAA appealed to county court at law, and following a trial de novo, the county court rendered a take-nothing judgment against AAA, awarding OIS attorney’s fees and costs in the amount of $13,362.12. 

With its favorable county court judgment in hand, OIS stopped making payments, and instead, “credited” AAA on OIS’s books with the judgment AAA owed to OIS against the amount of the rent OIS owed AAA.  Thereafter, AAA filed a second eviction suit, which it won at the JP court and on de novo appeal to the Bexar County Court at law.  OIS appealed to the 4th Court, arguing that its non-payment of rent was excused by the Judgment owed to it by AAA.  The Court of Appeals disagreed, and ruled, inter alia, that the lower court's finding that  OIS was in default under the lease because it did not continue paying rent, and instead, unilaterally applied its offset.

Notably, the Opinion issued today is not the final word. An appeal of the declaratory judgment action is apparently also pending with the Fourth Court of Appeals.

Texas Supreme Court Adopts New Rules for Justice Courts, Abolishes Small Claims Courts

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

In accordance with a law passed last legislative session (82nd Session, 2011), the Texas Supreme Court on February 12, 2013, adopted a Miscellaneous Order (No. 13-9023) that ABOLISHES the Small Claims Court as of May 1, 2013, and REPEALS a broad swath of the Texas Rules of Civil Procedure (Rules 523-591 and 737-755) and a statute from the Texas Property Code (Section 92. 0563(d)). 

The repealed Rules are replaced by newly-adopted Rules 500-510 of the Texas Rules of Civil Procedure, which will govern cases filed on or after May 1, 2013, as well as cases pending on that day.

The legislation mandating the changes, HB 79,  had far-reaching implications on the judiciary, and has been called a "major court reorganization bill."  Only a small -- yet very important -- part of the new law impacts landlord-tenant lawsuits in the Texas justice courts.

Of particular importance to this blog are the new rules governing eviction proceedings (Rules 500-507 and 510) and those governing "repair and remedy cases" in which a tenant alleges that a landlord has failed to repair a condition required by Chapter 92 of the Texas Property Code (Rules 500-507 and 509).

When time permits, I will post detailed explanations of the new Rules, and how they are different from the soon-to-be-abolished Rules governing eviction cases until April 31, 2013.

Bad Tenants Have Been Around Since Biblical Times -- Jesus Spoke of Them

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

Think your tenants are bad? You are not alone, and your experiences are nothing new.

Bad tenants who abuse owners' trust have been around since ancient times. So prevalent and historical is the problem, that Jesus Christ even told a parable about evil tenant farmers. 

The Parable of the Evil Farmers is found in Chapter 12 of the Book of Mark, Chapter 21 of the Book of Matthew, and Chapter 20 of the Book of Luke, and goes like this:

^{33 “Listen to another parable: There was a landowner who planted a vineyard. He put a wall around it, dug a winepress in it and built a watchtower. Then he rented the vineyard to some farmers and moved to another place.34 When the harvest time approached, he sent his servants to the tenants to collect his fruit.}

^{35  “The tenants seized his servants; they beat one, killed another, and stoned a third. 36 Then he sent other servants to them, more than the first time, and the tenants treated them the same way. 37 Last of all, he sent his son to them. ‘They will respect my son,’ he said.}

^{38 “But when the tenants saw the son, they said to each other, ‘This is the heir.Come, let’s kill him and take his inheritance.’ 39 So they took him and threw him out of the vineyard and killed him.}

-Matt 21: 33-39

However destructive, abusive and financially irresponsible your tenants are, there's a pretty good chance that they aren't killing your family members.  Fortunately, you also shouldn't have to kill them to get them out of your property, and rent it to another tenant who "shares their fruit."

There are other options, including eviction through the Justice Courts.  Rather than sending servants, perhaps you should consider sending a Notice to Vacate, and starting the New Year with a resolution to turn your rental property into something other than a source of stress and financial problems.