Topic: Residential Real Estate
In Texas, a landlord is sometimes faced with a tenant who "holds over" after the expiration of the lease term. In such event, the landlord wishing to regain possession of the leased premises must proceed by initiating a forcible detainer proceeding. A forcible detainer occurs when the party in possession originally had a contractual or common law right to possession and loses the right to possession. Under Section 24.002(a) of the Texas Property Code (the "Code"), the tenant commits a "forcible detainer" when he willfully and without force holds over after the termination of his right to possession. A landlord faced with this situation, and desiring to remove the tenant from the premises, must proceed under Sec. 24.005 of the Code. Many landlords will sometimes assume that a simple 3 day notice to vacate is all that is required. Don’t make that mistake, as the Code provides for more than a single notice. Please read on.
Sec. 24.005 does provide that the landlord must give the tenant that holds over beyond the end of the rental term "at least three days’ written notice to vacate the premises" (unless the parties have contracted for a shorter or longer notice period). But that Section has additional language that is sometimes overlooked. Specifically, it reads as follows: "A landlord who files a forcible detainer suit on grounds that the tenant is holding over beyond the end of the rental term or renewal period must also comply (my emphasis) with the tenancy termination requirements of Section 91.001." Sec. 91.001(a) of the Code provides, in part, as follows:
(a) "A monthly tenancy or a tenancy from month to month may be terminated by the tenant or the landlord giving notice of termination to the other.
(b) If a notice of termination is given under Subsection (a) and if the rent-paying period is at least one month, the tenancy terminates on whichever of the following days is the later:
- (1) the day given in the notice for termination; or
- (2) one month after the day on which the notice is given."
So is there need for another notice to first be given the holdover tenant before the "3 day vacate notice" is given? Yes, and let me give you an example.
Landlord and tenant have an oral month to month tenancy that runs from June 1st to June 30th. Assume that the agreement does not address the vacate notice period that is required of the landlord, and that the Section 24.005 three day notice applies. On June 20th, landlord decides he no longer wants the tenant on the premises and delivers written notice to tenant that states:
"30 Day Notice to Vacate" – I have elected to terminate your right to possess the premises and re-enter and take possession of the premises. I demand that you vacate the premises within 30 days."
Has the landlord’s written notice complied with all statutory notice periods prior to the landlord filing his forcible detainer pleading? I would say "no." Further, if I am representing the tenant, I would take the position that the notice fails to satisfy Sec. 91.001(a). The written notice certainly satisfies Sec. 24.005 in that it does give at least 3 days’ notice to vacate (it gives 30 days). However, the written notice fails as the "notice of termination" required by Sec. 91.001(a). That section requires that the landlord terminate the month to month tenancy, and it only makes sense that the tenancy must be terminated before the Sec. 24.005 vacate notice is given. Think about it. How can you give a vacate notice to a tenant when the tenant has yet to be notified that his tenancy has been terminated?
Under Sec. 91.001(a), the tenancy termination date where the rent-paying period is at least one month is the later of the day given in the notice for termination or one month after the day on which the notice is given. Since no specific date is mentioned in the landlord’s June 20th written notice (and assuming the argument can be made by the landlord that the June 20th notice is to function as the Sec. 91.001(a) notice of termination), the tenancy would terminate one month after the date (June 20th) of the written notice, i.e., July 20th, and only then could the landlord give the tenant the three day notice to vacate required by Sec. 24.005.
Is it possible for the landlord to include in a single written notice both notices set forth in Sections 24.005 and 91.001? I guess it could be done, but for purposes of clarity and to avoid confusion, I would recommend two separate notice letters, the first under Sec. 91.001, and the second under Sec. 24.005. Although many landlords represent themselves in forcible detainer proceedings in the Justice Court, this is one area where the services of a good attorney, at least at the notice-giving stage, should be seriously considered.
NOTHING IN THIS POST SHOULD BE CONSIDERED LEGAL ADVICE, BUT ONLY GENERAL INFORMATION THAT, ALTHOUGH POSSIBLY USEFUL, MAY NOT BE RELEVANT TO YOUR PARTICULAR CIRCUMSTANCES. FOR THAT REASON,YOU SHOULD CONSULT WITH YOUR OWN ATTORNEY ABOUT YOUR SITUATION. If you have no attorney and like what you see here, you can contact me by clicking on my name above, or by calling me at my office (713) 626-2221. If you do, and if your circumstances relate to the subject matter described hereinabove, please refer to this Blog No. 64.