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Bruce Elfant

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Constable's Notebook - September 2011

Over the last 2 years evictions in Austin have increased more than 50%. When people began feeling the impacts of the recent recession, some suggested that in order to assist those who lost jobs and savings there should be a moratorium on evicting people from their homes. I testified before a City commission that was considering recommending a moratorium, that the landlord-tenant relationship is a contract where both parties have certain rights and responsibilities. While well intentioned, the idea that one party may be relieved of their responsibilities to the detriment of the other party would have damaging economic impacts to landlords and turn our system of justice on its head.

Landlords may attempt to evict tenants for breach of contract including any unpaid rent, unauthorized occupants, damage to the dwelling or illegal activities. Before filing an eviction case, a landlord must first deliver a written notice that gives the tenant 3 days to either fully comply with the terms of the lease or move out. Landlords do not have the right to lock tenants out or disrupt electrical service without a court order. Tenants who believe that they were illegally locked out may seek relief by filing a writ of reentry case in court.

Landlords may not attempt to evict active duty members of the armed forces and must allow victims of domestic violence where protective orders are in effect to terminate their leases (see Texas Property Code Chapter 92.017- Right to Vacate and Avoid Liability Following Certain Decisions Related to Military Service). Landlords also may not seek to evict tenants in retaliation to maintenance requests. If a tenant fails to comply with the 3 day written notice to move out, the landlord may file a forcible entry suit in JP Court and a deputy constable will serve the tenant with a citation that describes the nature of the suit and the tenant's right to respond in court. The losing party has 5 days to appeal and/or move out. During the appeal period a tenant may remain in the dwelling by paying rent into the court registry. A tenant's failure to appear at the trial would almost certainly result in a default judgment that gives a landlord the right to proceed with the eviction. Following the 5 day appeal period a landlord may file for a Writ of Possession to order the Constable return the premises to the landlord's possession. The Constable will place a 24-hour notice to vacate on the door and not less than 24 hours later if necessary, remove tenants and supervise the removal of possessions from the premises. The entire eviction process may be completed in about 3 weeks.

Too often landlords and tenants don't clearly understand the law, legal time frames or their rights. Many evictions could be avoided through better communication between landlords and tenants. New landlords should become familiar with Chapters 24, 91 and 92 of the Texas Property Code. Tenants should be notified of alleged breaches well in advance of litigation and tenants should promptly respond. Tenants should take the time to fully understand lease provisions and should not be afraid to ask clarifying questions. Tenants who believe their landlord violated their contract or the law may consult an attorney or contact the Austin Tenant's Council at 474-1961 or online at http://www.housing-rights.org.



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