by April Royal, Birchstone Residential
From eviction moratoriums and mask mandates to unprecedented rent delinquencies and workplace disruptions, the COVID-19 pandemic severely damaged our industry. While most FWAA members overcame the pandemic-related operational and financial challenges, one very onerous COVID-19-Area regulation continues to wreak havoc on our industry: the 30-day notice to vacate.
Post-COVID, FWAA members have increasingly experienced losing eviction cases on technicalities, especially those based on the notice to vacate. Many FWAA members have also experienced legal aid attorneys and others assisting residents with the eviction process.
This month’s article focuses on a particularly important part of the eviction process: the Notice to Vacate (NTV), including the 30-day NTV, to help you navigate it.
Whether you and your onsite teams have done hundreds of evictions or none, it is always good to refresh and review the eviction process. Per usual, REDBOOK Blues does not provide legal advice. If you need legal advice, contact one of FWAA’s member attorneys.
The TAA REBBOOK provides authoritative information on the eviction process. Following is a brief summary of the eviction resources available in the REDBOOK.
The Chart:
Begin by reviewing the flowchart “Steps in the Eviction Process.” https://www.taaredbookonline.org/evictions-and-remedies/alternatives-to-eviction/steps-in-the-eviction-process
Violation:
It may appear obvious, but FWAA members cannot “evict” a resident without cause. You cannot evict a resident just because they like vanilla ice cream and you prefer chocolate. In other words, a lease violation (technically a breach) must occur. “Non-payment of rent” is the most common lease violation that leads to eviction. However, non-rent breach of lease evictions is increasing.
NTV:
Give the resident(s) a “notice to vacate.” The TAA Lease allows 24-hour notice. State law requires a 3-day notice. Even though Texas law allows for less than 3 days if both parties agree in writing (e.g., the TAA Lease 24-hour notice), most FWAA-area Justice of Peace courts require 3 days.
Operational tip: Be sure to document who and by what method the NTV was provided. FWAA has seen an increase in eviction cases lost by landlords because they failed to properly provide the NTV. If you use a non-lawyer representative in Justice of the Peace courts, it is critical that this representative has “personal” knowledge of the notice delivery.
CARES Act 30-day NTV:
If your property is covered by the CARES Act (accepts vouchers; has government-sponsored enterprise financing—Fannie Mae, Freddie Mac, etc.), then a 30-day notice to vacate is required.
Operational tip: If you only accept one voucher on a property, the entire property is covered under the CARES Act 30-day NTV. FWAA and NAA are aggressively collaborating with congressional members to repeal this requirement.
NTV Methods:
There are four alternatives for giving a resident a notice to vacate:
- In-person – to anyone residing in the rental unit who is older than 16 years old;
- posted on the inside front door;
- mailed; or
- Post the notice outside the door. You can post a notice to vacate on the exterior of the main entry door under the following scenarios:
(1) The unit has no mailbox and has a keyless bolting device, alarm system, or dangerous animal that prevents the property owner or manager from entering the unit, or
(2) The owner or manager reasonably believes that harm to any person would result from personal delivery to the resident or by entering the unit.
If none of those circumstances are present, you cannot post a notice to vacate on the outside of a dwelling.
Notices posted on the outside door must be securely fastened and placed in a sealed envelope with the resident’s name and address, and clearly state “IMPORTANT DOCUMENT” or similar language in capital letters. To be valid, a copy of the notice must also be placed in the mail by 5 p.m. of the same day it is posted in the same county in which the property is located. While posting notices on the outside door can be a valuable tool for avoiding potentially dangerous confrontations, care must be taken to follow the law’s requirements, or a JP may rule that the notice was not delivered properly.
Operational tip: JP courts are not collection agencies. If you decide to evict, do it. Serving an NTV and filing a case in JP court (with no intention of following through) to scare a resident is unethical and risks angering the JP.
No FWAA member wants to evict a resident. Eviction is a serious, legal matter. Eviction is often a last resort. As rental property owners/operators, we aim to collect 100% of rent on the first day of every month. Evictions cost money and consume valuable staff resources that could be deployed elsewhere. Evictions are bad for business. No landlord wants to forcibly remove a tenant from their home. But sometimes it is necessary. So, be prepared. Dot the “I’s” and cross the “T’s” on the NTV.
April Royal, Birchstone Residential, is FWAA’s 2024 Treasurer and Government Affairs Committee Chair.
