Notice to Vacate:
The notice to vacate in Texas tends to become the most pernicious part of eviction litigation for no good reason. Courts have found that defect in notice to vacate should cause a landlord to lose an eviction suit. Geters v. Baytown Hous. Auth., 430 S.W.3d 578, 586 (Tex. App.—Houston [14th Dist.] 2014); Onabajo v. Household Fin. Corp. III, No. 03-15-00251-CV, 2016 Tex. App. LEXIS 7454, at *14 (App.—Austin July 14, 2016). Tenant’s attorneys know this and often make minor, technical, immaterial defects in the notice to vacate their case-in-chief. The litigants, including the tenants, usually have no comprehension of why this matters so much, and especially why minor issues related to the notice to vacate can affect the end result of an eviction suit.
Worse yet, the tenant can blindside the landlord with trivial complaints regarding a notice to vacate only at the de novo trial held by the county court at law after a case has been appealed from the justice court. Eviction cases, in Texas, are designed to be handled primarily through the small claims process, typically without the involvement of attorneys. Accordingly, when an attorney handles a county court at law appeal of a justice court eviction, the attorney cannot go back and fix any issues with the prior notice to vacate.
This issue furthers the image that the general public has of lawyers and judges divorcing themselves from reality and operating in a world of their own where the merits of the case do not matter, where justice is a tertiary issue, and where the focus is on unimportant and unnecessary procedural details rather than the resolution of the dispute at hand. To remedy the situation, the rules should be fixed.
One simple way to fix the problem would be to pass legislation that would (1) require defendants in an eviction suit to raise complaints regarding the form, substance, or timeliness of a notice to vacate in an eviction suit by affirmative defense, (2) require that the affirmative defense state, with specificity, the defect in form, substance, or timeliness complained of, and (3) afford the landlord an opportunity to cure any defect complained of by the tenant prior to de novo trial in the county court at law. The details of this new law could be handled in various ways. The important object to accomplish would be to ensure that the landlord can cure any technical defect in the notice to vacate without losing his or her case in the county court at law, only to start all over again back at the justice court, where the case will inevitably be appealed a second time, only to be back in the county court again three or four months later on identical issues, thus, wasting everyone’s time and wasting judicial resources. Cases where the landlord loses in the county court at law on appeal due to issues with the notice to vacate only delay the inevitable and this delay causes substantial and unnecessary cost, attorney’s fees, and time. Justice and the reasonably prompt resolution of disputes are frustrated when these issues result in dismissal of suit, rather than some sort of cure opportunity being provided to the landlord.
No eviction suit tried de novo in the county court at law on appeal from the justice court should result in a judgment in favor of the tenant where the only grounds for the tenant to prevail are that some defect exists in the notice to vacate. By the time that the case goes to trial in the county court at law on appeal, the tenant has been occupying the property for several months after the notice to vacate was sent, thus, clearly getting far more three day’s notice that they need to vacate the premises. Also, at this point, the tenant clearly has notice that the landlord wants the tenant to vacate the premises because the parties have been litigating that exact issue all the way to an appeal. Instead of dismissal or judgment for the tenant, the landlord should be given an opportunity to cure any defect identified by the tenant in the tenant’s pleadings, and the case should be reset for trial after the cure period has ended. Furthermore, the tenant should be obligated to raise specifically the defect complained of, and not be able to blindside the landlord with the issue at the county court at law after failing to raise the issue in the justice court or in the pleadings.
The law on this should be similar to DTPA (“Deceptive Trade Practices Act”) notices where the remedy is to abate the case while the notice defect is cured. The remedy should not be dismissal of the case or judgment for the tenant. Neither of those results bears any proportionality whatsoever to the harm of a deficient notice to vacate. If a notice to vacate is deficient, then the landlord should have to cure the defect and the tenant should get a few extra days in the property while the defect is cured. The remedy of making the landlord and tenant start the entire eviction lawsuit process all over again from scratch is just nonsensical.
When the question of entitlement to immediate possession of the premises depends on resolution of a title dispute, the justice of the peace courts (and county courts at law on appeal from those justice courts) lack jurisdiction. When the justice court lacks jurisdiction, the case gets moved to another court, typically a District Court. See our blog article on “Overview of the Eviction Suit Process in Texas” for more information.
When justice court eviction suit is moved to a district court due to a title issue, the parties should not be deprived of their right to a speedy determination on the right to immediate possession. In district court, a non-paying occupant with a barely non-frivolous title claim, or sometimes even an utterly frivolous title claim, can occupy the property for several years while the suit slowly awaits a trial setting that will just be continued multiple times before the trial finally occurs. In the meantime, the property condition deteriorates, the property taxes go unpaid, the property becomes uninsured and subject to loss due to fire or other casualty, the property gets condemned by the City, the non-occupying owners fail to maintain the property, etcetera. When a non-paying occupant knows that he will lose the property at trial, he fails to care for the property, which leads to irreparable damage. The non-paying occupant is invariably judgment-proof or he would be paying for use of the property. Instead, the District Court should have authority to make a speedy determination as to the right to immediate possession and enforce it by appropriate pre-trial orders. In the event that a justice court cannot issue a determination on the issue of possession, then the party whose request for possession has been moved to district court should be able to set a pre-trial motion for interlocutory relief on the issue of possession, and at such hearing, the district court should also have authority to enter appropriate rent orders. For example, if a co-tenant owning 50% of the subject property seeks either possession or pro rata rent due to an ouster, then a justice court will likely refuse to hear the matter because the ouster is arguably a matter of title. When the non-occupying co-tenant re-files that possessory suit in district court, he should be able to set a motion for interlocutory relief on the issue of possession. The district court should set the matter for hearing within sixty (60) days of the filing of the motion, unless the filing party consents to a continuance. At the hearing, if the district court does not award possession to the party filing the motion, then the district court should have the authority to compel the party occupying the property to pay pro rata rent into the court’s registry pending final trial and authority to compel the occupant to pay the property taxes, keep the property insured, and adequately maintain the property pending trial. The current situation where occupants can use a frivolous or barely non-frivolous title dispute as an excuse to live rent-free in property for years at a time is inappropriate.
Copyright 2017, Ian Ghrist, All Rights Reserved.
Disclaimer: This blog is for informational purposes only. Do not rely on any part of this blog as legal advice. Instead, seek out the advice of a licensed attorney. Also, this information may be out-of-date.