Why Smart Sellers Hire Real Estate Agents

San Antonio Texas Real Estate Attorney Trey Wilson wrote:

As a real estate lawyer in San Antonio -- and one who frequently deals with real estate brokers and agents -- friends and clients frequently ask me about the cost versus benefits of hiring a real estate professional when selling property.  Suffice it to say that I believe that the benefits of professional representation are numerous, and I never recommend that a friend, client or family member sells real estate without the assistance of a licensed professional.

The counter-arguments I receive from Sellers are: 1) that the San Antonio Real Estate market is "hot"and should result in a quick/easy sale;   2) that in the modern era of social media, Trulia, and Zillow, marketing real estate is "easy;" and 3) that not paying a real estate agent a commission helps the seller "save money." 

I don't find ANY of these arguments compelling.  Rather, I think that the following five (5) reasons, alone, justify using a real estate broker as a Seller's agent in every transaction:

1)  Real estate agents help establish a market-supported, realistic listing price.  It's no secret, most FSBOs are overpriced.  Virtually every Seller thinks that their home is WORTH the amount that they WISH TO RECEIVE. You know --  worth enough to satisfy the existing mortgage, pay closing costs, and still have enough for a tidy down-payment on a new property. The truth, however, is that the Seller's perceived value of the property is rarely the fair market value (what a willing buyer would pay).    

By contrast, a licensed real estate agent can establish a realistic asking price formulated by data produced from performing a market analysis of comparable listings and recent sales. Further, the agent doesn't assign an "emotional premium" on the property. Thus, a real estate broker's involvement may help the Seller avoid the common pitfall of overpricing their home.

2)  Real estate agents are not emotionally attached to your property.  In addition to helping you avoid a hefty, unsupportable price tag based on an "emotional premium" (which has no value to anyone except you -- the Seller), a broker will  not be offended by a low offer, a less than perfect inspection report, or critical statements from prospective buyers.  This helps the process become more of a business transaction, and less akin to parting with a beloved family heirloom.

3) Real estate agents understand the law.  There can be dire consequences to failing to make certain disclosures, not meeting deadlines and discrimination against certain categories of buyers.  Chances are, you don't know the real estate laws that apply to and bind you. A licensed broker does. This can save you lots of money and grief later -- especially if you avoid a lawsuit.  Further,  selling a property implicates lots of paperwork.  Having a broker explain the significance of each document is invaluable.

4)  Selling a property creates an adversary relationship with prospective buyers.  While there is no need to be nasty, it is axiomatic that the objectives of the Seller (get as much $ as possible) are naturally and necessarily adverse to the objectives of the Buyer (pay as little $ as possible).  To achieve their objectives, Buyers usually "focus on" imperfections in the property to argue that a lower price should be acceptable. Sellers don't like hearing how their most valuable possession has "fleas"  -- even when these statements are made in the course of price negotiations Having a real estate broker to "run interference" can remove some of the tension from this relationship.  

5)  Real estate agents achieve higher sales prices.  The statistics don't lie. The average Realtor-assisted sales price is significantly higher than the average sale by owner.  This difference usually more-than compensates the fees charged by the agent.

For all of these reasons, unless you want to enlist the services of a Texas real estate lawyer, a prudent Seller should engage a licensed and reputable real estate broker when it comes time to sell.

Language in Deed Generally Supersedes that of Real Estate Purchase / Sale Contract

San Antonio Texas Real Estate Attorney Trey Wilson wrote:
As a San Antonio lawyer with an active real estate practice, I am frequently questioned about the legal effect of terms contained in a real estate purchase/sale agreement (earnest money contract) that do not appear in the deed. Some of examples of contractual provisions that may be omitted from deeds are:  rights of first refusal on adjacent property of the Seller,  easements or access reserved for the Seller, the right of the Buyer to cross adjacent property retained by the Seller, and the provision of a warranty on the property's condition.  The pattern is usually the same -- the parties negotiated a contract, and included certain "Special Provisions" in their written agreement, but those terms were never incorporated into the Deed recorded by the Seller after closing.

When this occurs, several legal doctrines may be implicated. This post focuses on the legal doctrine of MERGER.

It is the law in Texas that  a purchaser takes title to real property solely through a deed. See Stephens Cnty. Museum, Inc. v. Swenson, 517 S.W.2d 257, 261 (Tex. 1974). An instrument that does not operate as a present conveyance of title to real property is a contract to convey rather than a deed. See TEX. PROP. CODEANN. § 5.002; see also 30 Tex. Jur. 3d Deeds § 9 (2007). A contract to convey real property contemplates further acts leading up to the actual conveyance of title in the deed. See 30 Tex. Jur. 3d Deeds§ 9; see also Cont'l Royalty Co. v. Marshall, 239 S.W.2d 837, 840-41 (Tex. Civ. App.-Texarkana 1951, no writ). When a deed is delivered by the Seller and accepted by the Buyer as performance of a contract to convey real estate, the contract is MERGED in the deed.   

Though the terms of the  deed may vary from those contained in the contract, still the deed must be looked to alone to determine the rights of the parties. 2 DEVLIN, LAW OF DEEDS § 850a.  This principle is what Texas courts call "Merger. " See Baker v. Baker, 207 S.W.2d 244 (Tex.Civ.App. —San Antonio 1947, writ ref'd n.r.e.).

The Rule applicable in all contracts, that prior stipulations are merged in the final and formal contract executed by the parties, applies, of course, to a deed based 49upon a contract to convey. When a deed  is delivered and accepted as performance of a contract to convey, the contract is merged in the deed . Though the terms of the deed may vary from those contained in the contract, still the deed  must be looked to alone to determine the rights of the parties. No rule of law is better settled than that where a deed  has been executed and accepted as performance of an executory contract to convey real estate, the contract is functus officio and the rights of the parties rest thereafter solely in the deed .

Id. at 249-50, quoting 2 DEVLIN, LAW OF DEEDS § 850a.

Thus, when a Buyer accepts a deed as performance of an earnest money contract requiring the Seller to convey legal title top real property, it is the general rule that any collateral agreements contained in the contract are extinguished.  

This Rule, as most in the law, has exceptions.  For example, the Texas Supreme Court has held that the doctrine of merger may not be applied to defeat a cause of action under the DTPA for breach of an express warranty made in an earnest money contract and breached by deed.  See Alvarado v. Bolton, 749 S.W.2d 47, 48 (Tex.1988).  Likewise,  the doctrine of merger does not apply when a real estate contract was procured by fraud, accident or mistake in transactions leading up to the deed. ECC Parkway Joint Venture v. Baldwin, 765 S.W.2d 504, 511-12 (Tex.App.-Dallas 1989, writ denied);see also 1464-Eight, Ltd. v. Joppich, 154 S.W.3d 101, 104 n. 1 (Tex.2004) (disapproving court of appeals cursory analysis that based on merger doctrine earnest money contract was superseded by documents executed at closing).

Property Managers: Protect your Commission When a Tenant Becomes a Buyer

San Antonio, Texas Real Estate Attorney Trey Wilson wrote:

Many times, a residential or commercial tenant decides that they really benefit from or simply enjoy  living or operating their business in their rented premises. Often, this decision to "stay put" results in the purchase by the tenant of the property being leased.  When this happens, the Landlord/Lessor becomes the Seller, and the Tenant/Lessee the Buyer. 

But what happens to the Broker / Property Manager who, on behalf of the Landlord/Owner, located the Tenant, and managed the property during the lease term?  

Since rents will no longer be paid following the sale, the Property Manager's revenue stream from the lease payments necessarily dries up.  This is the case because the once-Tenant is now the Owner, and the Tenant's rental payments are likely replaced by mortgage payments.  The previous Owner (who was the Broker/Property manager's client) no longer maintains an interest in the property.

In recognition of the fact that the Broker / Property Manager brought the Tenant/Buyer and Landlord/Seller together (i.e. was the "procuring cause" of the lease that matured into a sale) the  written Property Management Agreement should be drafted in a manner that provides for a Broker's commission in the event of a sale to the Tenant.  

The Texas Association of Realtors (TAR) recognized the frequency of tenants becoming buyers, and has included a provision in its promulgated management agreement forms granting the Broker a commission in the event of sale. Both the TAR 2202 (Commercial Property Management Agreement) and TAR 2201 (Residential Property Management Agreement) provide for Broker's fees / commissions in the event of sale, whether to a Tenant of the Property, or otherwise.  

It's no secret, however, that many Brokers/Property Managers in Texas do not use the TAR forms (perhaps because they are expensive).  However, even when using non-standard forms, it is prudent from Brokers/ Property Managers to include a section in the written management agreement that provides for a commission in the event of a sale of managed property.  This clause should clearly reflect the value brought by the Broker when that sale is to a tenant secured by the Broker.  

Commissions provided-for in written Management Agreements are enforceable, and can provide a Manager/Broker with a nice parting-gift when a managed property goes out of management.

Resident and HOA Flagpole Dispute

San Antonio HOA Lawyer Trey Wilson wrote:


As reported by Cindy George of The Houston Advocate,  HOA's and residents of the communities they manage can be disagreeable and destructive.  Ms. George reported that The Forrest Lake Townhouse Association sued homeowner, Billy B. Martin, over a flagpole on a cantilever on his porch.  Houston police had to intervene to resolve the conflict.

Mr. Martin claimed he was targeted by the HOA because of a recent complaint he made about a tattered flag at the clubhouse.  He said that after that incident and after it was replaced, he was told he must remove his flag  or risk a $200 per day fine for attorney and civil damages, because it was "infringing on the common area."  Mr. Martin disagreed with the HOA's assessment and refused to remove the display.  The HOA sought a permanent injunction in December.  At that point, Mr. Martin began displaying his flag upside down in protest.

The lawsuit claims that the pole is "a violation of the general scheme and plan for the development and building in the subdivision," and that his "actions are intentional and/or negligent invasions" into the property owned by the HOA & its members.  The petition also claims that  the display "substantially interferes with their use and enjoyment of the land and it is unreasonable under the circumstances."

HOA Accountability Bill Stirs Debate at Capitol - From the texas Tribune

San Antonio HOA Lawyer Trey Wilson wrote:  Here's another insightful article from the Texas Tribune.  This article originally appeared in The Texas Tribune at http://www.texastribune.org/2013/04/09/hoa-accountability-bill-stirs-debate-capitol/.

     by Jay Root, The Texas Tribune        

A bill aimed at making nonprofit homeowners associations more financially accountable and transparent pitted homeowner activists against people representing for-profit HOA contractors on Tuesday.

House Bill 3803, by state Rep. Ruth Jones McClendon, D-San Antonio, would require homeowners associations, which have government-like powers to levy assessments and foreclose on homes, to better safeguard the money they collect for the common good of the neighborhood.

And it would for the first time introduce state oversight of HOAs — an elusive goal of Texas homeowner activist groups. The legislation would allow the attorney general to investigate breaches of fiduciary responsibility by board members and levy penalties of up to $20,000 per violation. That would go up to $250,000 if the violation was intended to harm an elderly Texan.

“All we’re trying to do is to get them to pay attention to what they’re doing with other people’s money,” McClendon said.

Homeowner Xina Togba said the association in her Lakeville subdivision in Katy could use a little state oversight. Under current law, homeowners who have beef with their HOA have little legal recourse other than filing a lawsuit, which can be expensive and daunting. Togba told the committee that her board has towed hundreds of vehicles without proper notice, saying many of the cars were removed from public streets and even homeowners’ driveways. She also complained that the board has been secretive about its meetings and has been dragging its feet on providing basic financial information.

She said the management company that runs the Lakeville Community Association, SCS Management, has refused to even provide a copy of its contract with Lakeville.

“We have no strategy other than to be loud and speak up,” she said.
A voicemail left for SCS Management was not immediately returned; a message left on Lakeville's website was not immediately returned, either.

McClendon’s bill ran into fierce opposition from the HOA lobby, including the industry's main advocacy group in the state, the Texas Community Association Advocates, or TCAA. The industry critics say the legislation is unworkable and punitive to the voluntary board members who run them. TCAA represents HOA boards and members and the interests of for-profit contractors, such as HOA management companies and foreclosure lawyers, at the Texas Capitol.

Dallas HOA attorney Judd Austin, a TCAA board member, said the legislation would have a “chilling effect on the volunteer spirit of the communities,’’ telling the House Business and Industry Committee that the board could handle its own financial affairs without additional state regulations.
Besides the AG oversight, the bill would require board members to have surety bonds and get insurance providing coverage for the risk of fraud and dishonest acts.

Embezzlement and fraud cases have left some homeowners associations in dire financial shape. Prosecutors say that in the Houston area last year, for example, one property manager hired to run several associations in Fort Bend County stole more than $2 million, according to a report on KTRK-TV, Channel 13. And in Nevada, federal prosecutors have charged dozens of people in a far-reaching conspiracy to take over homeowners associations and direct millions in contracting dollars to themselves in a massive corruption scheme.

Andrew Fortin, vice president for governmental affairs at the giant HOA management company Associa of Dallas, said the goals of McClendon’s bill are laudable. But he expressed opposition to it and said he is working with her office to to improve it.

“We think that there are things that can be done on this,” Fortin said. “We don’t think that the current bill captures the experience that other state have had in addressing issues of protecting financial assets of the community and ensuring our boards are accountable.”

Homeowner activist Harvella Jones, president of the National Homeowners Advocate Group, said the fiercest opposition is coming from companies that are profiting from HOA dues money.
“It’s created a money making industry for a lot of the special interest groups,” Jones said. “These are our homes. … We need something to protect the money.”

HOA Embezzlement Prevention Bill (HB 3803) To Be Heard Today

San Antonio HOA Lawyer Trey Wilson wrote:

State Representative Ruth Jones-McClendon's HB 3803 is set for public hearing today before the House Committee on Business and Industry. 

As I previously wrote, the Bill (filed on 3/8/13) seeks to prevent Board-member fraud and embezzlement of HOA funds through a series of money management procedures and local government regulation. Pundits have predicted substantial testimony concerning the Bill.

It should be an interesting day, as sentiments on both sides of the Bill are strong. Among the most important concerns regarding the Bill are its financial implications upon the Texas Attorney General, cities and counties who would be granted regulatory authority over HOAs. According to the Fiscal Note prepared by the Legislative Budget Board, local governments, including the City of Houston, are uncertain about the financial impact of this new-found authority. 

  

New Bill Proposes Local Government Control and Attorney General Oversight of HOAs

San Antonio HOA Lawsuit Lawyer Trey Wilson wrote:

State Rep. Ruth Jones McClendon of San Antonio has filed legislation that would cede control over Texas Homeowners Associations/Property Owners Associations to cities and counties, with oversight and monitoring to be conducted by the Texas Attorney General's office.

The initiative -- HB 3803 --  is captioned as "Relating to the municipal and county regulation of and the oversight by the attorney general of property owners ’ associations and unit owners ’ associations; providing penalties."

This bill would authorize Texas cities (in city limits and ETJ) and counties (in unincorporated areas) to regulate HOAs on a variety of matters of "municipal concern," and to require registration with the applicable unit of local government. Other portions of the bill affect the way HOA funds are deposited and maintained (in trust accounts) and contain new bonding and insurance requirements for HOAs and their directors. 

Sections 3 and 4 of the bill are particularly dangerous to Texas HOAs because they would require the Texas AG's office to monitor HOAs and investigate complaints about them.  These provisions expressly provide for notification to the AG in the event of embezzlement of HOA funds.   A particularly interesting, if unclear, section of the bill directs the AG to monitor the banking institution where HOAs maintain the newly-required trust accounts. 

The bill was filed on March 8, and was referred to the House Committee on Business & Industry on March 21.

If enacted, this legislation would modify the Texas Local Government Code and Chapter 82 of the Texas Property Code. 

We've moved our office -- please stop by and say hello!

San Antonio HOA Lawyer Trey Wilson wrote:

Trey Wilson has moved his law practice to 111 W. Olmos Dr., San Antonio, Texas 78212. Phone, fax and email will remain the same.

Who is Running the TRCC -- An Insider's Guide to Understanding How the Foxes are Guarding the Henhouse

Have you ever wondered who the individuals are that are charged with regulating and overseeing homebuilders in the State of Texas? After all, the State has surely placed highly qualified, unbiased, and consumer-concious individuals at the helm of the agency created for the purpose of "promoting quality construction for Texans by registering industry members and residential construction projects; providing information and educating homeowners and the residential construction industry; acting as a resource for complainants; and offering a neutral, technical review of alleged post-construction defects," Right? You might just be surprised.

By law, the Texas Residential Construction Commission is comprised of nine members appointed by the Governor: four registered builders, three members of the general public, one engineer who practices in the area of residential construction and one either architect or inspector who practices in the area of residential construction. The Commission members serve six-year staggered terms.

Here is a list of the current members:

COMMISSIONER Paulo Flores (Chair) - Dallas, Texas
COMMISSIONER Glenda Mariott (Vice Chair) - College Station, Texas
COMMISSIONER Lewis Brown (Secretary) - Trinity, Texas
COMMISSIONER Art Cuevas - Lubbock, Texas
COMMISSIONER Kenneth Davis, P.E. - Weatherford, Texas
COMMISSIONER Gerardo "Jerry" Garcia - Corpus Christi, Texas
COMMISSIONER John Krugh - Houston, Texas
COMMISSIONER Steven Leipsner - Lakeway, Texas
COMMISSIONER Mickey Redwine - Ben Wheeler, Texas


here are some of their "unofficial" affiliations, which might cause the average Texas consumer a little discontent:

J. Paulo Flores: Chairman. Mr. Flores is a distinguished lawyer with impressive credentials. But...who have his clients have been for the past 20 years? This would be interesting to know.

Glenda Marriott, Vice Chair. She is the Vice-President of Marriott Homes, Inc. This corporation is a Builder, registered with TRCC under builder number 1003. As of the date of this posting, they have registered 172 homes with the TRCC.

Lewis Brown, Commissioner. Mr. Brown is an inspector and the proprietor of Brown's Inspection Service, LLC. he was once a prominent member of the Greater Houston Builders Association. Note who GHBA is, and who its members are.

Art Cuevas, Commissioner. he is a Builder and the president of Art Cuevas Construction -- TRCC registered builder 1001, with 51 homes registered as of today.

Jerry Garcia, Commissioner. He is President of Hacienda Construction, Inc. This coporation has TRCC registration number 2444, with 10 homes registered. As past president of the Corpus Christi Builders Association, a Life Director for the Texas Association of Builders and a Director for the National Association of Homebuilders, Mr. Garcia is hardly a consumer advocate.

John Krugh, Commissioner. Senior Vice President and Corporate Counsel for Perry Homes. Perry Homes is among the largest builders in the nation. Perry is registered under TRCC number 1040, and has 12559 homes registered with TRCC.

Steven Leipsner, Commissioner. Former Executive Vice President of the Marriott Corporation.

Mickey Redwine, Commissioner. President of Dynamic Cable Construction Company, L.P.


Trey Wilson is a construction, real estate, evictions and water lawyer in San Antonio Texas. He routinely represents homeowners in claims for defective construction and residential project abandonment. he may be reached at www.sa-law.com or 210/223-4100

A PRIMER ON EVICTIONS IN BEXAR COUNTY

WHAT IS AN EVICTION?

An "eviction" is a legal proceeding by which the landlord seeks to reclaim the premises and put the tenant out.

If you are a landlord, you should find out the legal grounds for evicting a tenant as well as the proper notification requirements. A tenant could receive compensation for costs paid because of unlawful eviction.

If you are a tenant, you need to know how you can defend yourself against an unjustifiable eviction. To protect yourself, know what your lease says.

WHAT IS THE DIFFERENCE BETWEEN AN “EVICTION” AND A “FORCIBLE DETAINER?”

A person commits a forcible entry and detainer if the person enters the real property of another without legal authority or by force and refuses to surrender possession on demand.
See Tex. Prop. Code § 24.001(a)

WHAT IS A “FORCIBLE ENTRY?”

A forcible entry is: (1) an entry without the consent of the person in actual possession of the property; (2) an entry without the consent of a tenant at will or by sufferance; or (3) an entry without the consent of a person who acquired possession by forcible entry.
See Tex. Prop. Code § 24.001(b)

WHO MAY BRING AN EVICTION ACTION?
The landlord, his/her attorney, or a non-lawyer agent may sign and file the Complaint of Forcible Detainer and represent the owner at the court hearing. Though the law does not require an attorney to represent you, it is highly recommended that you have an experienced lawyer to assist you in the eviction process!
See TRCP 747a

DO I NEED A WRITTEN LEASE TO EVICT?

No, many times occupants of properties are there under oral agreements, or even without any right of possession. A written lease is not required for eviction.

WHAT ARE THE MOST COMMON REASONS TENANTS ARE EVICTED?

Non-payment of rent
The landlord must inform the tenant in writing that full rent is due by a specific deadline or the lease will be terminated. If the landlord refuses to take full payment and the tenant can prove it, the eviction can be challenged in court. After the deadline, the landlord doesn't have to accept payment.

Other tenant violations
The landlord must inform the tenant in writing of the supposed violation. The tenant must have ample time to correct the problem. If the tenant does nothing to correct it, the landlord may evict.

Lease has expired
If the landlord doesn't extend an expired lease and the tenant refuses to leave, the landlord may evict. The tenant must be given written notice.

WHERE DO I FILE AN EVICTION LAWSUIT?

A justice court in the precinct in which the real property is located has jurisdiction in eviction suits. Eviction suits include forcible entry and detainer and forcible detainer suits.
See Tex. Prop. Code § 24.004.

WHAT MUST BE INCLUDED IN MY COMPLAINT FOR EVICTION?

The complaint shall describe the lands, tenements or premises, the possession of which is claimed, with sufficient certainty to identify the same, and it shall also state the facts which entitled the complainant to the possession and authorize the action under Sections 24.001 - 24.004, Texas Property Code.
See TRCP 741

AM I ENTITLED TO HAVE A JURY HEAR MY EVICTION CASE?

Any party can request a jury trial on or before 5 days from the date the defendant is served with the citation by paying a $5.00 fee.

WHAT NOTICE IS REQUIRED PRIOR TO FILING FOR EVICTION?

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.

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.

If a building is purchased at a tax foreclosure sale or a trustee's foreclosure sale under a lien superior to the tenant's lease and the tenant timely pays rent and is not otherwise in default under the tenant's lease after foreclosure, the purchaser must give a residential tenant of the building at least 30 days' written notice to vacate if the purchaser chooses not to continue the lease.

Before a foreclosure sale, a foreclosing lienholder may give written notice to a tenant stating that a foreclosure notice has been given to the landlord or owner of the property and specifying the date of the foreclosure.

If the occupant is a tenant of a person who acquired possession by forcible entry, the landlord must give the person at least three days' written notice to vacate before the landlord files a forcible detainer suit.

The notice period is calculated from the day on which the notice is delivered.
See Tex. Prop. Code § 25.005(g).

HOW SHOULD THE NOTICE TO VACATE BE DELIVERED?

The notice to vacate shall be given in person or by mail at the premises in question.

Notice in person may be by personal delivery to the tenant or any person residing at the premises who is 16 years of age or older or personal delivery to the premises and affixing the notice to the inside of the main entry door.

Notice by mail may be by regular mail, by registered mail, or by certified mail, return receipt requested, to the premises in question.

If the dwelling has no mailbox and has a keyless bolting device, alarm system, or dangerous animal that prevents the landlord from entering the premises to leave the notice to vacate on the inside of the main entry door, the landlord may securely affix the notice on the outside of the main entry door.
See Tex. Prop. Code § 24.005(f).

WHAT IS THE COST OF FILING THE EVICTION?

Filing fee and service charge is $87.00. (27.00 filing fee, 60.00 serves one person in Bexar County).

WHAT TYPE OF NOTICE WILL THE TENANT RECEIVE?

At the time of filing, the Court Clerk will issue a receipt. The receipt will include the case number and the court date. Please refer to your case number when communicating with the court regarding your case. The Court will then issue a citation to the defendant(s) commanding him/her to appear before the Justice of the Peace on the assigned court date. A copy of the complaint will be attached to the citation and both the citation and the attached complaint will be served upon the defendant by the Constables Office.

WHEN WILL MY EVICTION LAWSUIT BE HEARD?

By law, the hearing date will be not less than six (6) day nor more than ten (10) days from the date the citations is served. The hearing date will be set for either a Tuesday at 10:00 a.m. or Thursday 11:00 a.m. Should the plaintiff/landlord fail to appear at the hearing, their case may be dismissed or there may be a judgment for the defendant.

CAN I RECOVER MY COSTS?

Yes. The prevailing party in an eviction proceeding will generally be awarded costs, particularly if they are prescribed by a written lease agreement.

CAN I RECOVER ATTORNEYS’ FEES?

To recover attorney's fees in an eviction suit, a landlord must give a tenant who is unlawfully retaining possession of the landlord's premises a written demand to vacate the premises. The demand must state that if the tenant does not vacate the premises before the 11th day after the date of receipt of the notice and if the landlord files suit, the landlord may recover attorney's fees. The demand must be sent by registered mail or by certified mail, return receipt requested, at least 10 days before the date the suit is filed.

If the landlord gives this notice, or if a written lease entitles the landlord to recover attorney's fees, a prevailing landlord is entitled to recover reasonable attorney's fees from the tenant.

If the landlord gives this notice, or if a written lease entitles the landlord or the tenant to recover attorney's fees, the prevailing tenant is entitled to recover reasonable attorney's fees from the landlord. A prevailing tenant is not required to give notice in order to recover attorney's fees.
See Tex. Prop. Code § 24.005(f).

CAN I RECOVER PAST-DUE RENT?

A suit for rent may be joined with an action of forcible entry and detainer, wherever the suit for rent is within the jurisdiction of the justice court. In such case the court in rendering judgment in the action of forcible entry and detainer, may at the same time render judgment for any rent due the landlord by the renter; provided the amount thereof is within the jurisdiction of the justice court.
If the complaint for Forcible Detainer includes a suit for unpaid rent, the plaintiff/landlord must clearly state the amount of back rent for which judgment is being sought, and should reserve the right to include any additional rents that may become due during the pendency of the suit.
See TRCP 738

WHAT ISSUES WILL THE JUSTICE COURT DETERMINE?

If the judgment is favor of the landlord, the justice shall give judgment for the landlord for possession of the premises, costs, and damages; and he shall award his writ of possession.

If the judgment or verdict is in favor of the tenant, the justice shall give judgment for tenant
against the landlord for costs and any damages.
See TRCP 748

HOW LONG DOES IT USUALLY TAKE TO PROCESS AN EVICTION IN THE JUSTICE COURT?

Eviction proceedings in Bexar County take, from start to finish approximately three weeks.
• 3 days from notice to vacate to filing of suit.
• 8-10 days to serve the citation and get to Court. Texas law requires the defendant have at least six days notice before the hearing.
• 5 days to appeal the suit following the hearing required by law.
• 2 days- The Constable is required by law to post a 24 hour vacate notice on the Writ of Possession

IS THE JUSTICE OF THE PEACE RULING FINAL?

Not if it is timely appealed. That is, either party may appeal from a final judgment in an eviction case to the county court of the county in which the judgment is rendered.

HOW CAN I APPEAL A JUSTICE COURT RULING?

After the hearing, either pary has five (5) calendar days to appeal the judgment by filing an Appeal Bond with the Justice Court. It is strongly suggested that an attorney be consulted before filing an appeal. A Transcript Fee will be charged for appeals.
See TRCP 749

TO WHOM IS AN EVICTION JUDGMENT APPEALED?

To the county court of the county in which the judgment is rendered.

HOW DO I PERFECT AN APPEAL FROM A JUDGMENT OF EVICTION?

Either party may appeal to County Court by filing either an Appeal Bond which conforms with Texas Rule of Civil Procedure 750, or a Pauper's Affidavit within 5 days from the date of judgment. When appeal is perfected, the Justice Court will stay further proceedings and file the transcript in the county clerk's office.
See T.R.C.P. 751

WHAT GROUNDS OR EVIDENCE WILL THE COUNTY COURT REVIEW ON APPEAL?

The entire proceeding / trial will be de novo in County Court. A trial de novo is a type of appeal in which the appeals court (County Court in the case of evictions) holds a trial as if a prior trial had never been held.
See TRCP 751

Trey Wilson is an attorney and real estate agent in San Antonio, Texas. He routinely represents landlords and tenants in residential eviction lawsuits in the Bexar County Justice Courts. To schedule a free consultation call 210/223-4100 or visit www.sa-law.com Most residential eviction cases can be handled on a flat fee basis.

Mandatory County Code Inspections -- Being Outside the City Limits No Longer Enables Faulty Construction

Big changes are in effect for all homebuilders and remodelers who build in the unincorporated areas of the state. As of September 1, 2008, all homes constructed in unincorporated areas, or areas not subject to municipal inspections, must undergo a minimum of three inspections to ensure building code compliance.

Legislation was passed in 2001, making the International Residential Code (“IRC”) the municipal residential building code in the state. Then, in 2003, the Texas Legislature mandated that all homes in the state, including those in the unincorporated areas, be built to IRC standards. Finally, last session saw the passage of legislation requiring that all homes in the unincorporated areas, as well as areas without
municipal inspections, must be inspected for code compliance beginning September of
this year.

A minimum of three inspections will be performed by a third party inspector, or Fee
Inspector, and must occur at the following stages of construction:

1. foundation, prior to the placement of concrete;
2. framing and mechanical systems prior to being covered with sheetrock or other
interior wall covering; and
3. final inspection when the home is completed.

The builder/remodeler is responsible for contracting with the Fee Inspector, which
includes the following pool: (1) a licensed engineer; (2) a registered architect; (3) a professional inspector licensed by the Texas Real Estate Commission—a TREC
inspector; or (4) a third-party inspector approved by the Texas Residential Construction Commission (“TRCC”)—a TRCC code inspector.

It is important to note that the builder/remodeler may use the same or different Fee Inspector for the three required inspections, and that the builder/remodeler, has the ability to hire the Fee Inspector of his choice and is not forced to use any one category of Fee Inspectors.

The TRCC will create a unique numbering system using a builder’s registration number
for all construction subject to the new inspections. This number will be used to track the inspections. The fee inspectors will electronically report the completion of an inspection using the unique number and receive a verification document showing the inspections have been satisfactorily completed. The purpose of this document is to show that the home has passed these required inspections so as not to hold up closings.

Within 30 days thereafter of the registration of the home, the homeowner and builder will receive an official "Certificate of Completion."

For a remodel, the inspections will only be required if necessary based on the scope of work. The applicable building code will be the building code in effect for the area, as currently mandated by the TRCC Act. The applicable building code for residential construction located in an unincorporated area not in a city’s ETJ is the IRC as adopted and amended by the county seat of the county in which the construction is located. If the county seat has not adopted and/or amended the IRC, the applicable building code is the IRC as it existed on May 1, 2001. The applicable building codes as described above do not constitute a change in the rules or the statute.

Inspection records and documents will not be turned over to the TRCC by the inspector or builder. However, the TRCC will conduct random audits of the inspection records, and builders must maintain those records for a minimum of five years.

After publishing the proposed rules on the subject and making some amendments to them
based on formal Texas Association of Builders (“TAB”) comments, the TRCC has
adopted the final Fee Inspector rules. To see a copy of the formal rules, please visit the Commission’s website at: http://www.trcc.state.tx.us/Inspectors/CountyInspections.asp