Level up: two eviction cases in one day and an education courtesy of Judge Lee
The first time I ever found myself filing an eviction suit was probably in 2007. My property (and the court) were in Waco, but I lived 100 miles away, so I had to take time out to drive up and file the paperwork. When the court date came around I didn't show up, because I had class to go to, but also because I had no understanding of how the eviction process worked. I thought of it more as a trip to the DMV: you fill out some paperwork and they give you whatever you came to get. I don't think I realized that it was actually a court proceding where the tenant also gets to have a say. There also wasn't a handbook or a website that layed it all out for a newbie landlord, and the court clerks are characteristically disinclined to explain things. Then there are the local attorneys, who carry the knowledge and experience around in their heads, but it's not their job to explain things to a layman do it yourselfer either.
In practical terms though, I was right about the DMV way of thinking. My tenant didn't show either, and the judge gave me a default judgement. Those were very different times. In the years since, I've had to educate myself about the eviction process. By 2020, I thought I had it figured out, but one day in January knocked me down and taught me a few new lessons.
Disclaimer: I am not a lawyer and this article is not meant to be legal advice. I am just sharing my experiences as part of my journey into investing in real estate over the past 17 years.
1305 Sherman: Jimmy and Diana
The backstory of this house was that it was in foreclosure. A wholesaler I work with dropped off a note and the tenants (Jimmy and Diana) responded. They put him in touch with the owners (who lived out of town), and who were willing to sell.
My wholesaler, Jimmy, Diana, and I all got together a couple of days later at a coffee shop and talked about the situation. My plan was to buy the house, pay off the mortgage (it was only about $27,000), make some repairs, and let them keep renting it as long as they wanted. They seemed like reasonable people, and I felt like I could work with them.
A few days before closing, I told the tenants I wanted to do a walk through of the house, but for some reason they became immediately hostile and wouldn't allow me to come see the place. All I wanted was a 5 minute walk through, nothing fancy, but they were 100% opposed and wouldn't give an inch. This is where I made my first mistake. I should have walked away from the deal. It was an old, junky house. Not much profit to be made from it, and not letting me in for a quick tour should have been a red flag.
My second mistake was to let emotions take over. I got angry and I told myself I could just kick them out once I closed on the house. That way it would make it easier to do whatever repairs the house needed anyway. I lost track of the reason I wanted to do the walk through in the first place-- to find out how much work the house needed! My mind just got the idea stuck in it that it would need minimal work. Third mistake. Turns out it needed a full gut and rehab, but I didn't find that out until later.
This article is supossed to be about navigating the eviction process, so back to that. Once I got angry I stopped thinking strategically. Since I didn't back out, the most important thing I should have done before closing is gotten a copy of the lease from the seller, or if there wasn't one, gotten a copy of a recent rent check so at least I knew how much they were supposed to pay. If there was no written lease (or if it was expired) the law calls it a tenancy at will and the owner can terminate it by giving 30-day notice. If there is a written lease, standard procedure is that the new owner has to honor it until it expires. That's because title and possession of a property are two separate things from a legal point of view. When you buy a house you the title to it; you don't necessarily get possession.
Mistake number 4 was after closing. I delivered a 3-day notice to vacate by slipping it in the mail slot. The notice basically said "hey guys, I'm the new owner and I don't want you here, so get the heck out." Only, that's not how it works! Three-day notices are for lease violations and for non-payment of rent (the most common lease violation). "I'm mad at you" is not a lease violation. This began to dawn on me after the fact and I began to think about ways to extricate myself from the mess I had made.
The court date was three weeks out, and I was in touch with the tenants by text message. They alternated multiple times a day between normal and reasonable on the one hand, and hostile and spewing vile paranoid delusions on the other hand. Fortunately, I managed to keep my temper in check. One mistake I avoided was responding with any long messages and I kept emotion out of the texts completely. At one point, Diana texted to say they'd be out by such and such a date (about a week out), and I agreed. When that day came and went they were still in the house, with no sign of leaving. I think they just didn't have money to move, so I offered them some money. We eventually settled on a cash for keys deal where I paid them $400 to move out.
Next, I had to meet them in person to hand over a check and get a signed agreement. I back dated the agreement to the date she had told me that she planned to be out by such and such day (but then it came and went), figuring, why waste another two weeks when they already promised to leave? Hold 'em to it! Turns out this was mistake number 5. The way I saw it, I was only codifying the agreement we already made, but they didn't see it that way. They were angry, but signed anyway, because they wanted the check.
When the court date came, Jimmy and Diana were still in the house, and Diana showed up at the hearing. Judge Lee happens to be one of the tougher ones on landlords (I didn't have much experience with him before this). After hearing me out, Diana explained about the back dated cash for keys agreement. Judge Lee became visibly steamed and questioned me, asking is this true? Etc. I said yes. It had not occured to me to bring copies of her text messages where she promised they would move out. Those messages were dated prior to my filing suit and might have given me a chance (a small chance) to convince the judge that the suit was filed properly. As it happened, he was angry because it looked like I was trying to do an end run around the rules. That is, file suit first and only then claim there was a cash for keys agreement. He threw out the case.
The counterfactual (what I should have done) would have been to give them the chance to pay rent, and then if they didn't pay I could have gone ahead with the case on that basis. The other option would have been a 30-day notice to vacate because they were tenants-at-will.
In the end, I still had the signed cash for keys agreement. I just had to wait until their time to move out expired (counting from the date they signed), and then I could file eviction again, which would be a legitimate case at that point.
Tearra had become a difficult tenant after the first few months of her lease. She fell behind on rent and then it became a pattern, where it would be late every month or she would make partial payments and I wouldn't know when the next one would be. I try to be flexible and work with people when they fall behind, but to be able to do that, I really need them to keep me posted and be proactive about it. Like telling me when they're going to make a payment, and then doing it.
We coordinated to get her rental assistance in December, but she fell behind again in January. I sent a 3-day notice to vacate by first class mail as well as in person by taping it to the outside of the front door of the house on January 6.
I filed the eviction suit on January 10 and the court date was set for January 21. It turned out that both of the hearings I write about in this article were on the same day. After my case against Jimmy and Diana was thrown out I waited another 45 minutes in the lobby and then came back in front of Judge Lee again, obviously not his favorite person in the world at this point, so he may have been primed and looking for holes to poke in my case.
The tenant didn't show for this one, but Judge Lee isn't one of those JPs who will give you a win by default, even if you haven't done anything to place yourself on his bad side. I went through the usual spiel for an eviction for non payment case. Explained when rent was due, that I had a written lease, the lack of payment, the amount, and the date I gave notice.
Judge Lee then asked to see my notice to vacate, and asked how I went about sending it to the tenant.
I responed about having placed it on the front door.
He questioned me-- the front door? Hmm. Where on the front door? Outside or inside? Now I knew I was in trouble.
See, there's a part of the Texas property code that tells you to place the notice on the INSIDE of the door: Section 24.005(f). But there's another sentence that gives you an alternative. Section 24.005(f-1)(2) says you CAN put it on the outside, but only under the circumstance that you believe it would be too dangerous to put it inside. I had read this over and over and I knew it, but I had never before had a JP question me about it. I knew what the law said, but I kind of figured it wasn't being enforced too strictly, and I had let myself get sloppy. Over the years I had developed a practice of always putting it on the outside because, well, it was easier.
I told the judge that I placed it on the outside pursuant to Texas Property Code 24.005(f-1)(2) but he was not having it. He said OK, if you thought it would be dangerous, have you ever filed a police report about the tenant? I had to answer no to that question, so he dismissed "danger" as a reason and said I had failed to property serve notice under 24.005(f-1)(2), which is also known as "nail and mail".
Ok, I thought. I still have my fall back. I didn't meet the standard for 24.005(f-1), BUT since I had mailed the notice, I could still meet the standard for 24.005(f). Judge Lee tore me apart there as well. Asking when I mailed it, I replied that I sent it on the same day as the one on the door, which was January 6. Section 24.005(f-1) says you have to mail the notice by 5pm the same day as you place it on the outside of the door. It also says that if you meet these two requirements the notice is considered to be delivered on that day.
That is the kicker: (f-1) has that language but (f) does not. (f-1) specifically says if you follow this and this procedure, it is considered delivered on the day you did it. (f) says you can mail it, but does not say anything about when the notice is considered to be delivered.
Remember! We already said (f-1) is out the window. We're using (f) now.
I mailed it on January 6, and I filed the suit on January 10, four days later. I thought that was plenty of time. After all it's a 3-day notice, right?
Actually, wrong. It's a three day notice from the time the tenant gets it in their hands! I never thought about that. Judge Lee asked me if I ever heard of something called the mailbox rule. Well I hadn't. I still can't find it written down anywhere. But he then tells me that it says you have to wait 7-10 days AFTER MAILING the letter to give the post office time to deliver it. THEN you can file suit. I am still not clear on whether you wait 7-10 days for the post office PLUS 3 days for the time to vacate, or if the 3 days is included in the 7-10. Anyway. Judge Lee was mopping the floor with me. Next thing I know I'm on my way out the door, defeated for the second time that day.
Needless to say, I was a little frustrated, but really I can't fault the judge for being a stickler. The effect is that it made me much more aware of how important the little details are when it comes to the rules for eviction cases. It might feel like JP court is the wild west (and back in 2007 when I did my first one, it certainly was), but times change.