Evictions should be quick and easy – at least, we all hope they are. However, there are many ways to delay or stop the eviction process, and some of our own clients have fallen victim to these tactics without advice for eviction help. Knowledge is power, and below are 5 unexpected ways tenants avoid eviction, and what landlords can do about it. For more information regarding unwanted tenants, click here.
1. File for bankruptcy.
Beginning in 2005 with the Bankruptcy Abuse Prevention and Consumer Protection Act, if you sued the tenant for eviction and won a judgment for possession before the tenant filed for bankruptcy, you can proceed to evict the tenant, even if the tenant then files for bankruptcy in an attempt to stop the eviction. In a few states, and only in evictions based on nonpayment of rent, a tenant can stop an eviction at the last minute by filing for bankruptcy if they file a certification and pay back rent.
If you have not won a judgment for eviction when your tenant files for bankruptcy, and the tenant is (or becomes) behind in the rent, or violates another term of the tenancy (such as keeping a pet in violation of a no-pets clause), you can’t deliver a termination notice, let alone start the eviction process. This prohibition is known as the “automatic stay.” (From Nolo.com).
2. Pay partial rent, or legally justify not paying rent.
First of all, send late notices immediately and make sure your lease agreement is very strict and clear. Eviction for back-rent is one of the easiest things to prove in court. While you can evict for other reasons, a few of which are stated above, not paying rent is by far the easiest to prove. If you accept partial payments, your case becomes much weaker and is a positive move in terms of eviction help.
Secondly, there are two reasons tenants can legally avoid paying rent in Texas. We will expand on this in #5, but first, in Texas, the landlord can decide whether to accept late rent or evict a tenant. If the landlord chooses to accept late rent, the landlord must notify the tenant in writing that the tenant owes rent, before giving the tenant a Notice to Vacate. If the landlord provides this late rent notice to the tenant, then the Notice to Vacate can give the tenant the option to either pay the rent or move out. If the tenant pays the full amount owed in rent within three days, then the landlord must not proceed with the eviction lawsuit (see Tex. Prop. Code Ann. §24.005(i)).
Alternately, if the rental unit is uninhabitable or unsafe and the tenant informs the landlord in writing of the issues, the landlord only has 7 days to fix the issue. If the problem is not fixed, the tenant can pay for the repairs and would then have a legal reason to deduct the repair from his rent owed. (see Tex. Prop. Code Ann. § 92.056 and 92.0561 and Texas Tenant Rights to “Repair and Deduct”).
3. File a motion to strike your service down (or find other legal errors).
In order to legally file a lawsuit, you have to properly give your tenant notice of the legal eviction. If you do not provide a legal summons, then the tenant can strike your serving them down, forcing you to serve them again.
This brings up a larger issue, which is that as a landlord, it is important to make sure that you have NO errors in your eviction actions. In Texas, as with many other states, there are very specific rules and guidelines for eviction notices. Make sure that none of your paperwork is missing any information (even details such as dates and spelling).
Some landlord’s try evicting tenants via the “self help” method. Do not change the utilities or keys or try to lock out the tenant without going through the proper legal proceedings. Doing so is illegal in all 50 states. (Tex. Prop. Code §§ 92.008, 92.0081, 92.009)
4. Hire legal aid defense lawyers.
There are some lawyers who will defend tenants for free if they think they can win on a technicality, then charge the landlord with hefty lawyer fees. The best way to prevent this is to cap the attorney fee provision in your lease or remove it completely to deter defense attorneys.
5. Affirmative defenses.
Like very defendant, the tenant can file affirmative defenses. This is where they will get you if you do not precisely follow eviction laws. Tenants may rightfully, or often wrongfully, claim that the house was not habitable at some point or currently. They could also challenge your ownership of the house, claim that they have been discriminated against or claim that you refused to accept rent. The easiest of these to prove for the tenant if habitability – if they have proof that repairs were needed and not attended to, then you might be in trouble. It isn’t likely that you will be found guilty of any of the accusations, but by law the motions must be heard and therefore, will delay the process.
Other Steps Landlords Can Take for Eviction Help
If a tenant is attempting any of these tactics to avoid eviction, there are several things you can do. First of all: hire an eviction attorney. Hiring an eviction lawyer instead of representing yourself or hiring a general real estate attorney will give you the best, most efficient results. While hiring attorneys can be expensive, paying the mortgage and maintenance fees on the property will cost you more in the long run if the tenant continues not to pay. Second, have a strong lease agreement (and hire an attorney to help write it). Third, make sure to document absolutely everything.
Fourth, budget for tenant vacancy. If the tenant delays the eviction for months and you cannot cover the holding costs, you will lose the house. So, when budgeting take into consideration average vacancy in your area, and make sure to give yourself a generous margin for the unexpected.
Fifth, be very picky about your tenants. Many landlords find it helpful to hire property management companies to handle application and acceptance of tenants, payments, lease agreements, disagreements, maintenance and any other issues that may arise.
If you have problem tenants, or HAD problem tenants or squatters and now want to liquidate the property, call 713-909-4119 to get an analysis of your house.