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.

 

Anxiety & Fear – Marcy Freeman, a Family Law Attorney, Teaches us How to Process Both in the Wake of COVID-19

By | Unsolicited Opinions

As I write this blog, fear is the prevailing emotion of our country, and most everyone I know is experiencing anxiety.   We are being bombarded with bad news about our health and our economy.   How are we supposed to live in these times of uncertainty, where are we going to buy toilet paper, what is going to happen to my retirement account?  BUT – if we take a minute to really think about our fear and anxiety rationally, we can move forward and feel a lot better.

Fear and anxiety are different.    According to the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5) “Fear is the emotional response to real or perceived imminent threat, whereas anxiety is anticipation of future threat.”

We should remember fear is an emotion which alerts us to a “a real or perceived danger.”  Our fight, flight, or freeze response evolved as a survival mechanism and is an instantaneous physiological reaction in response to a perceived harmful event, attack, or threat to survival.  Throughout history, fear has helped us to avoid danger and to stay alive.    So, some fear is good because it protects us while irrational fear is not good.   How do we determine whether fear is good or bad?

I say we stare fear in the face so that we can get a good look at it and assess the “perceived danger.” Our evaluation of the perceived danger educates us about that danger – is it real, how close is it, etc…      After I know the danger, I can make a plan and move forward.

Anxiety is an insidious little creature because it feeds on itself.  Anxiety is the result of the way that I deal with my fears about the future.   In my head, I create and replay “stories” about what might happen in the future in an attempt to make sense of things and to control what might happen.   The truth is that my stories don’t solve my problems because the stories are based upon something that may or may not happen in the future.   When I repeatedly replay the story, the story becomes a never ending loop of anxiety.

How can I stop the loop?   Fortunately, I can change my thought processes.  According to studies, meditation (an ancient practice which brings us back to the present moment) can help with feelings of anxiety, anger, and depression and can even change your brain! https://www.forbes.com/sites/alicegwalton/2015/02/09/7-ways-meditation-can-actually-change-the-brain/#50d655aa1465

The present moment is what life is all about.    I can only control what is happening right now.     If I am busy thinking about the future (or the past) I am going to miss what is happening right now – a beautiful smile, the sunset, a fragrant smell.    I am going to miss my life.   I am not going to allow Covid 19 prevent me from living in the present moment.   Life is too short!

COVID-19 Possession Schedule when School Closes

By | Co-Parenting, Custody and Conservatorship, Divorce, Uncategorized, Unsolicited Opinions

Parents – Here’s what to do about possession schedules that are contingent on the “school calendar”. Above all, show your children that you are prepared for anything, including COVID-19 and that you and their other parent have it under control. Hoard all the toilet paper you want, but do NOT lose it when it comes to sharing your child.

1. Be advised that there is not a Judge on the bench who would not want you and your co-parent to work out the exchanges so that each parent has the same amount of time with the child they would have had had school not been cancelled.

2. Do not make any unilateral decision without FIRST calling, texting and or reaching out to your co-parent via Our Family Wizard. Actually make a genuine effort to figure out the solution on your own. Be creative, share babysitters, adjust.

3. For schedules that begin and end when school starts and ends – pick up and drop off at the locations specified in the section of your order that says “General Terms and Conditions”.

4. If you had spring break possession for even years, return the kids Sunday night or Monday morning when school was supposed to resume but didn’t due to a national emergency.

5. For the parents that typically have the children during the school week, surrender your child to your co-parent at the next exchange period had there not been a school closure. This exchange is most likely Thursday, March 19, 2020, in the afternoon and a return the next day or that evening depending upon whether or not there is an expanded standard or non-expanded standard schedule.

6. When it comes to exchange times and locations, be bendy. Do not insist that it be at 3:00 pm (the time school ordinarily releases) or at 7:30 am (when school begins). Work around each other’s schedules. This means offer to exchange at the babysitter’s house or share family members that are willing to provide child care. Heck – offer the kids to the parent who is working from home during the outbreak.

7. What you do now will not waive any rights to your status as a litigant. What you do now will define the extent you will go to protect your child from the instability that this crisis presents us. Judges will notice one way or the other.

8. Give your co-parent the benefit of the doubt. People are going to have terrible tone, and they may lash out. These are coping mechanisms and its not about you. Just allow everyone to panic a bit so they can recover and move on.