Sept e mb e r 2 0 13
Focus
D al l as Bar A ssoci ati on l Headnotes 13
Real Estate/Construction Law
What You Need to Know about the Commercial Eviction Process by Karen L. Hart
Texas landlords have a statutory right to lockout commercial tenants delinquent in paying rent. However, Texas landlords must follow lease and statutory requirements. Commercial landlords and tenants may find themselves engaged in eviction proceedings where lockout is improper, insufficient, or impracticable. This article provides a basic overview of commercial lockout and eviction procedures in Texas. A landlord failing to follow lease terms, including any default notices, or statutory lockout procedures, which require posting written notice on the tenant’s front door stating the name and address or telephone number of the individual or company from which a new key may be obtained upon payment of rent, may end up in a tenant tussle over wrongful lockout, which may result in the tenant regaining possession of the premises, termination of the lease, loss of rent claims and claims for damages against the landlord. Claims for damages for wrongful lockout may be brought separately from, or along with, a suit for reentry, if the claim is within the $10,000 justice court jurisdictional limit. The justice court in the precinct where the premises are located has exclusive jurisdiction over the reentry suit. A writ of reentry may be issued ex parte on a temporary basis until final hearing on the sworn reentry complaint. Faced with unfeasible lockout or a writ of reentry, an eviction suit may be necessary. Statutory forcible detainer proceedings are intended to provide a fast, simple, and inexpensive method
of regaining possession of property from an uncooperative tenant. The justice courts have exclusive jurisdiction over forcible detainer actions. If within jurisdictional limits, a breach of lease claim for rent owed may be filed along with the eviction suit, or it may be filed separately in district or county court. A forcible detainer action only determines the right to immediate possession of real property if there is no unlawful entry (e.g., trespassing). Forcible detainer suits do not resolve title issues. Unless a shorter or longer notice period is contracted, a landlord is required to give the tenant at least three days written notice to vacate before filing a forcible detainer suit. In the absence of an attorneys’ fee provision in the lease, notice to vacate and demand for possession must be provided to the tenant at least 11 days before filing suit to evict to secure attorneys’ fees in the eviction action. The sworn complaint for forcible detainer must describe the property claimed and state facts sufficient to show entitlement to possession. The citation must command defendant’s appearance before the court not more than ten days or less than six days from the date of service. If the defendant fails to appear, default judgment may be rendered on possession and unpaid rent sought. With payment of the jury fee, a jury trial may be demanded on or before five days from the citation service date. Otherwise, the case is tried to the justice. The parties may represent themselves or be represented by their authorized agents. Corporations are
not required to be represented by an attorney in justice court. A prevailing landlord is entitled to judgment for possession of the premises and a writ of possession. A writ of possession may not be issued before the sixth day after the date on which the judgment for possession is rendered, unless a possession bond has been filed and approved. The sheriff or constable executing the writ of possession shall post written warning on the front door of the leased premises notifying the tenant that the writ has been issued and will be served on or after a specific date and time stated, not sooner than 24 hours after the warning is posted. Upon execution of the writ, the officer shall deliver the premises to landlord, instruct the ten-
ant and all persons claiming under tenant to leave, and, if they fail to comply, physically remove them and instruct the tenant to remove or allow the landlord to remove all personal property from the premises. The officer may use reasonable force in executing a writ of possession, but may not require the landlord to store the tenant’s property. The final judgment entered by the justice court may be appealed exclusively to the county court. Appeal must be perfected within five days after the judgment is signed by filing an appeal bond with the justice court. The county court proceedings are de HN novo. Karen L. Hart is a partner at Bell Nunnally & Martin LLP, and can be reached at karenh@bellnunnally.com.
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