OWNERS NEWSLETTER - DECEMBER 2020

EVICTIONS – Texas law prohibits a property manager from giving legal advice and from representing his or her client in legal matters. A longstanding exception to this rule is that a property manager may represent a client when it involves the lawful eviction of the client’s renter for non-payment of rent. This exception allows property managers to expedite the eviction process and save property owners the expense of hiring an attorney. Traditionally, evicting a renter required the property manager to be thoroughly familiar with Texas real estate law as it relates to evictions, the lease contract, court proceedings and rules, and being well versed on the legal paperwork and procedures. A seasoned property manager should also know which judge to choose when filing an eviction suit. An uninformed choice might result in a less than favorable judicial outcome. We manage properties in multiple counties and each court has its own unique policies and procedures that we must be familiar with. Over the past thirty-four years, we have successfully represented our property owners in thousands of non-payment of rent eviction trials.

Filing eviction paperwork with the courts has become increasingly complicated and has evolved from a one-page petition to multiple petitions, cause forms, affidavits, etc. If a renter is in the military, a separate affidavit is required. If the property owner has a federally backed mortgage on the property, current law requires us to deliver a thirty-day notice to vacate to the non-paying renter. When no federally backed mortgage is involved, we must deliver a twenty-four-hour notice to vacate prior to filing with the court. Most recently, the Centers for Disease Control and Prevention (CDC) created a declaration form, which has created a roadblock for landlords attempting to evict renters for non-payment of rent. The form allows the non-paying renter to declare that due to the COVID-19 Virus, he or she is protected by the CDC’s moratorium on residential evictions. Consequently, before proceeding with an eviction suit, the court must now conduct a hearing regarding the validity of the renter’s declaration before moving forward with the eviction trial.

Another recent development involving military renters has presented itself. The Servicemembers Civil Relief Act (SCRA) of 2003 provides a multitude of protections for servicemembers and their families. As written, servicemembers that are in default for non-payment of rent are afforded the ability to stay civil court proceedings for up to 90 days. Many years ago, the attorneys of the Texas Apartment Association (TAA) and the U.S. military agreed upon a waiver form wherein servicemembers would waive certain protections under the SCRA such as the 90-day stay. The courts will not hear a non-payment of rent eviction suit if the military renter has not signed the waiver form. The TAA recently announced that it will no longer produce and provide the waiver form because of a settlement agreement involving a U.S Department of Justice lawsuit against another TAA member. In that case, a San Antonio apartment community’s use and enforcement of the waiver form was found to be in violation of the SCRA. Although the settlement agreement is not binding upon other TAA members, its impact was enough for the TAA to discontinue the waiver form. It remains to be seen how Central Texas county courts will now handle eviction trials involving military renters in the absence of the waiver form. Updates to follow. 

We would like to wish you a safe and blessed holiday season. We sincerely appreciate your trust, support and patronage.

David Gerke

Broker