RESIDENTIAL EVICTIONS AND COVID19 – UPDATED

By | Construction & Real Estate News|Firm News, Domestic Violence, Real Estate Law

On April 6, 2020, the Supreme Court of Texas extended the deadlines regarding residential evictions.

Under the “old normal,” when a tenant violated a residential lease agreement, the landlord could evict the tenant by filing a lawsuit, serving the tenant with notice of the lawsuit, and having a hearing.

The Ninth Emergency Order applies only to residential tenants.  Trials, hearings, or other proceedings cannot be conducted until after April 30, 2020 and a writ of possession may not be executed until after May 7, 2020.    This means that a court cannot have an eviction trial until after April 30, 2020 and landlord cannot regain possession of the property until after May 7, 2020.

Before April 30, 2020, a landlord can file a residential eviction lawsuit at any time; however, the landlord cannot serve a tenant with notice of the eviction until after April 30, 2020.

The Supreme Court carved out an important exception –a “Sworn Complaint for Forcible Detainer for Threat to Person or for Cause.”  If the landlord believes that a tenant is being threatened or a crime is being committed, the landlord can file a Sworn Complaint for Forcible Detainer for Threat to Person or for Cause.    That complaint must be sworn to or have an affidavit attached to it which describes:

          1) that the actions of the tenant or the tenant’s household members or guests, pose an imminent threat of physical harm to the plaintiff, the plaintiff’s employees or other tenants, or

          2) criminal activity.   

The threats and/or criminal activity must be within the personal knowledge of the person signing the statement.   The complaint and/or affidavit must be signed in front of a notary public.    If the landlord does not have personal knowledge, the landlord can still file the complaint and attach an affidavit signed by the person with personal knowledge to the complaint.   For instance, if the landlord had rented to a husband and wife and the wife physically assaulted the wife.    The landlord could file the complaint and attach the affidavit of the wife to the complaint.   If the court determines that the complaint satisfies this requirement, the court can proceed and have a hearing.

The rationale behind the Supreme Court’s order is obvious – during this time when many people are not able to work, tenants should not fear being kicked out of their homes.   At this same time, landlords can still file eviction lawsuits and tenants who are threatened can still be protected.

 

QUARANTINE 2020– Do I have to pay rent? What can my landlord do? What should Landlords do?

By | Real Estate Law

These truly are unprecedented and uncertain times. I’m fielding questions from business owners and building owners alike about what to do when rent is due and not paid on April 1st and beyond.

The short answer is every tenant should pay rent as required under their respective lease agreements. Failure to do so triggers the default provisions in the lease. Most, if not all leases are devoid of force majeure or excuse-of-performance provisions. So, if a tenant is in the incredible situation of not being able to pay rent because of the current pandemic and accompanying economic downturn, what options exist?

Both residential and commercial lessees should first talk to their landlords. See what options exist and what the landlord is willing to do in light of these unprecedented and uncharted times. Maybe nothing. But, landlords generally prefer to keep a good-paying tenant rather than dealing with the expense and hassle of an eviction, or the self-help remedy of a commercial lock-out, and might be willing to agree to a short-term arrangement without waiving any of the other lease obligations.

Landlords also have expenses and obligations, however. But, landlords would rather have a building with tenants who have been able to survive this as opposed to a vacant building because tenants had no choice but to default and walk the lease. Every landlord/tenant relationship will be different but an open conversation about the current realities is a good place to start.

This is a difficult time for both landlords and tenants and having the conversation now is better than waiting until rent is due and nasty letters and notices are being sent and received.

Additionally, with regard to residential properties, the Supreme Court of Texas has postponed all eviction hearings and trials until after April 19, 2020, to prevent non-paying residential tenants from losing their homes. There are some exceptions in the March 19, 2020 Order, but the expectation is that Landlords will file eviction suits after the Order expires.

I will follow up with the eviction process, the commercial lock-out process, the damages a landlord can seek and how personal guarantees (in the commercial lease context) play in the process. Stay tuned. And stay healthy.

No information in this article is intended as legal advice. For specific legal advice you should contact an attorney. If you have questions or would like more information about landlord/tenant matters, please contact Olyn Poole at 817.348.9060 or olyn@deckerpoole.com.