Court of Appeals Upholds Eviction and Award of Attorneys' Fees

In its January 6, 2010 opinion in McDonald v. Claremore Apartment Homes, the Fourth Court of Appeals (San Antonio) upheld the Judgment of Eviction entered by Judge Paul Canales, sitting in the Bexar County Court at Law No. 5.

The Appeal involved claims by McDonald that the trial court erred in determining that she had not paid rent for several months in 2008, and that the attorneys' fees awarded to Claremeore were improper.

In overruling McDonald's claim, the Court of Appeals approved Canales' rejection of receipts from 2007 to indicate payment of rent in 2008. The Court also determined that uncontroverted testimony by Claremore's attorney concerning the number of hours spent handling the forcible entry and detainer action satisfied the Texas Property Code's requirements for awarding attorneys' fees to a prevailing landlord.

The opinion was authored by Justice Speedlin.

San Antonio J.P. Featured in Negative Express News Article

Today's San Antonio Express News contains an article entitled "JP's law license suspended after complaints" which details action taken by the State Bar of Texas against local Justice of the Peace Monica Caballero.

I do not personally know Judge Caballero, but have appeared before her several times on evictions and other cases. Despite the concerns she may have faced in her private law practice, she has always appeared to me to be fair and deliberative, and to have as a good a command on the law as any Justice of the Peace. From what I've seen, her judicial temperment has been fair, and she clearly understands Forcible Entry & Detainer law. She does not appear to me to be biased in favor of or against either landlords or Tenants.

While I understand the public appeal of the story and the EN's right to publish even the personal problems of a public figure, my opinion as an attorney who frequently handles evictions in and around San Antonio, is that Judge Caballero's problems do not disqualify her from serving as JP, or otherwise call into question her ability to perform the functions of the job.

I believe that calls for Judge Caballero's resignation and/or termination are unfounded.

R L Wilson, P.C. Law Firm Launches San Antonio, Texas Evictions Website -- www.saevictionlawyer.com

I am proud to announce the launch of our brand new website dedicated to San Antonio, Texas eviction law -- www.saevictionlawyer.com. The site is R L Wilson, P.C. law firm's online eviction resource. I chose the name "SA Eviction Lawyer.com" for its obvious, easy-to-remember name, and to emphasize that the lawyers at R L Wilson, P.C. Law Firm are some of San Antonio's best evictions lawyers.

Please take a few minutes to browse the new site to learn about our San Antonio eviction law practice, and for links to the Bexar County Justice Courts, which maintain original jurisdiction over all evictions cases.

We will also be posting new websites emphasizing our San Antonio construction law, water law and lien law practices.

LEASES FAQ

What is a lease or rental agreement?

When the landlord has decided to rent to the tenant and the tenant has chosen to rent from the landlord, they will enter into a lease or rental agreement. These are contracts, either written or oral, in which the landlord grants to the tenant exclusive possession of a premises in exchange for rent for a period of time.

Do all tenants have the same kind of lease?

No. Most tenants fall into one of two categories.

If the tenant rents for a fixed period of time (that is, a term) and no notice is required to terminate, the tenancy is called a tenancy for years. This tenancy is usually in writing. It must be in writing if the term of the lease is longer than one year.

If the tenancy continues indefinitely, automatically renewing from one period to the next, and if a notice is required to terminate, the tenancy is called periodic. This lease or agreement may be written or oral.

What are the advantages of an oral versus a written lease?

For tenants with an oral month-to-month agreement, the major advantage is the ability to terminate the lease and move out without further rental liability with only a short notice to the landlord. The notice usually must be the same as the term of the agreement, commonly 30 days. Tenants are very mobile (20 percent move each year) and the ease of moving can be an important consideration.

For landlords, an oral lease provides an easy way to terminate the lease and make the tenant move out with only a short notice, or to raise the rent. The landlord is usually not required to state a good reason for the termination, as must be done in other cases.

What are the disadvantages of an oral lease?

Because nothing is written down, the major disadvantage is the possibility of misunderstandings between the landlord and the tenant about the conditions of the tenancy.

What are the advantages of a written lease?

From the landlord’s standpoint, the chief advantage of a written lease is the landlord's right to hold the tenant to pay rent for the entire duration or term of the lease.

What are the disadvantages of a written lease?

The major disadvantage for the tenant is that the landlord may write in express provisions that void certain protections that the law ordinarily gives to the tenant. Also, most written leases—including most of the standard form leases—favor landlords, and the landlord's responsibilities are not very well spelled out.

Does the law regulate the provisions in a lease?

Yes. Both courts and legislative bodies have restricted the provisions in a lease. However, these laws vary by state and locality.

In one example of a law restricting a lease, state courts have struck down lease clauses which provide that the tenant accepts the apartment in "as is" condition and that the tenant must pay the rent regardless of whether the landlord maintains the property. So, if a landlord sues to evict for nonpayment of rent, tenants can defend themselves by arguing that the premises were not worth the full contract rent because of the deteriorated condition. This legal concept is called the implied warranty of habitability. It prevents the landlord from evading the responsibility to maintain the premises even if the tenant signed a lease waiving the right to maintenance.

Many states and municipalities have enacted laws that prohibit some clauses from residential leases. An example of a commonly prohibited clause is "confession of judgment." Such a clause would permit the landlord's attorney to go into any court and to represent the tenant without any prior notice, service or process. The tenant would waive a jury trial, confess judgment to whatever the landlord sues for without any defense, waive all errors or omissions made by the landlord in making the complaint, and authorize an immediate eviction or wage deduction.

Trey Wilson is a lawyer in San Antonio, who frequently represents landlords and tenants in lease negotiations, possession disputes and evictions. He was recently voted by his peers as one of San Antonio's best real estate litigation attorneys. He may be reached at 210/223-4100 or www.sa-law.com

FAQ -- SECURITY DEPOSITS

What is the purpose of a security deposit?

The security deposit law serves as a protection for the landlord. The deposit can be used to cover costs for which the tenant is liable by providing some sort of collateral to protect a landlord's property against abuse by the tenant and by recapturing actual financial losses as a result of the tenant's breach of a lease. Texas law protects the right of renters to get their deposit back.

Can I assume that my security deposit will automatically cover the last month's rent?

No, not automatically. Normally, the tenant cannot deduct the security deposit from the last month's rent without permission from the landlord. Assuming that the security deposit will cover the rent / balance of the rent and therefore withholding payment, constitutes a lease violation for which the tenant may be evicted. In addition, a tenant who withholds the last month's rent may be liable for an amount equal to three times the amount of the rent wrongfully withheld and the landlord's reasonable attorney's fees.

I've just moved out of my rental unit. When can I expect to receive my security deposit?

According to the Texas Property Code, a tenant has the right to receive his / her security deposit (or the balance of the security deposit with a list of itemized deductions) on / before the 30th day after leaving a dwelling, provided the tenant has given the landlord written notice of her forwarding address for the return of her deposit. For more information, see Procedure to Refund.

Are there any qualifications to my receiving my security deposit?

Yes. You should receive your security deposit provided you have met the following conditions:

Your lease term has ended
You have given thirty days written notice prior to leaving the dwelling
You do not owe any back rent or other charges
You have not damaged the apartment in excess of normal wear and tear

Is it true that if I do not provide my forwarding address, I lose my deposit?

No, but the landlord is not required to return a deposit until 30 days after the tenant
moves out or 30 days after the landlord receives the tenant's forwarding address in writing.

I've received my security deposit, but not the full amount. Is my landlord required to provide an itemized account of deductions?

Yes, unless the tenant owes rent and there is no dispute over the amount owed. Otherwise, the landlord must provide an itemized list of deductions within 30 days. If the landlord doesn't include an account of itemized deductions within 30 days, s/he may forfeit the right to withhold any part of the deposit and may be liable for court costs, statutory penalties and attorney's fees. If the deposit is not returned in full within 30 days, and the court finds that the landlord acted in bad faith, the landlord can be held liable for $100 and three times the amount of the deposit wrongfully withheld, plus attorney's fees and court costs.

Can the landlord deduct from my security deposit for normal wear and tear on the unit?

No. Landlords cannot charge for normal wear and tear on the apartment. For example, the landlord should not charge for such routine procedures as shampooing the carpet or painting the unit, unless there are egregious stains, damages, etc.


If my landlord fails to return my deposit within 30 days, can I receive more than the amount of the security deposit?

Not necessarily. A tenant will receive more than the amount of the security deposit only if it can be proven in court that the landlord acted in bad faith.

My rental unit is about to be sold. Will I lose my security deposit?No. Under Texas law, there is no requirement that the landlord put the security deposit into an escrow account to be transferred to the new owner. Nor is there an automatic transfer of security deposits to new owners. The old landlord is still responsible for returning all security deposits to tenants until the new owner gives the tenant a signed statement that s/he has received and is responsible for the security deposits.

I've decided not to take an apartment, after all, despite signing the lease. Can I get my security deposit back?

Texas does not have a Buyer's Remorse Law, so the lease becomes binding as soon as it is signed. Many rental application forms allow the landlord to keep the entire deposit if the tenant is approved and then decides not to sign the lease. Even if there is no written agreement about the deposit, the landlord is entitled to recover out-of-pocket expenses (including advertising and lost rent) after taking the property off the market.

However, if the tenant secures a replacement tenant, approved by the landlord, the landlord may not keep the deposit if the replacement tenant occupies the unit by the date the lease was to begin. On the other hand, if the landlord secures the replacement tenant, s/he may keep a sum agreed to in the lease as a cancellation fee or the actual expenses incurred by the landlord.

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.

Tenant Lock Out Rights in Texas. Is a Lockout the Same As An Eviction?

A Lockout Is Not An Eviction - It's a mechanism used to get the attention of the Tenant and to force them to contact management and make arrangements to pay any past due rent.

A landlord can lock out a Tenant for non-payment of rent for no more than two hours after the Tenant requests re-entry. There are multiple rules from the Texas property code that Landlords must follow:

1) They must give you written notice in your lease either in bold or underlined print that they reserve the right to lock you out for non-payment of rent or other fees. If you are late with your payment they then must again give written notice of past due rent and late fees and of their intent to lock you out.

2) They can not lock you out or change the locks while you or any or guest occupies the rental unit.

3) If your are locked out the landlord must return full access with 2 Hours of your request and can not require your to pay any rent amount or late fees before allowing you re-entry. If they do not allow access they are subject to prosecution on an criminal misdemeanor charges as well as civil fines and court cost. Under no circumstances tamper with or remove the landlords lockout device because they can fill criminal charges against you. If the property management company does not let you in and provide you with a new key within 2 hrs call 911 and ask them to send an officer to assist you to gain access and be sure to get an Incident number so you can be can not be prosecuted. This will also help with your case for cash damages of up to 1 months rent, plus $500 and Attorneys fees - minus any past due rent..

4) Your management company can not use "off duty" Police or Law enforcement officers to try to force you to allow them to change the locks or allow them to remove property that is subject to "A landlords Lien." If a police officer who is being paid or receiving compensation such as free or discounted rent cannot " Use The Color Of their Badge" to do the landlords bidding in relation to your nonpayment of rent, lockout or landlords liens. It is must certainly a conflict of interest and is subject to criminal prosecution for "Official Oppression" - Texas Penal Code - Section 39.03 for the Law Enforcement Officer. Both the landlord or the landlord's agent who instigates such action is also subject to civil and criminal prosecution.

If this happens do not step outside you door or allow the officer working as a security officer for the complex inside your apartment. They may try to arrest you " for disorderly conduct" or some other trumped up change that judges tend to give them the benefit of the doubt for.

In a non-treating voice inform them that their actions appear to be a "Conflict Of Interest" and are verging on "Official Oppression" and you want another police agency to intervene. Close the door and then you should then call 911 and ask them to send another law enforcement agency to send a supervisor and make a complaint for "Official Oppression" which is a federal and state civil rights violation. When the other agencies officer arrives allow him and him only into your residence and state your case, call the local Justice of the peace and ask him to speak to the officer. Always ask for an Incident report number for your compliant.

If you feel that you have been improperly locked-out, or that your landlord will not abide by the law without your resorting to Court attention, call a lawyer experienced with evictions, such as San Antonio attorney Trey Wilson of R L Wilson, P.C. Law Firm.