Property Management Webinar Series Evictions & Foreclosures Instructed by Kinski Leuffer, Associate Counsel August 17, 2011.

Property Management Webinar Series Evictions & Foreclosures Instructed by Kinski Leuffer, Associate Counsel August 17, 2011

I. Eviction Process Steps: Notice to vacate
Filing suit (eviction complaint in JP court) Going to court Writ of possession

I. Eviction Process What is an eviction?
Eviction – a legal means to remove a tenant from the property when they no longer have a right to possess the property In the Texas Property Code, the laws on eviction are found under Chapter 24. These laws apply to both residential and commercial evictions.

I. Eviction Process Forcible entry and detainer v. forcible detainer
Forcible entry and detainer – the initial entry was illegal and refusal to surrender possession of property on demand TPC § Forcible detainer – refusal to surrender possession of property on demand TPC § Evictions are referred to as forcible entry and detainer in the Texas Property Code. *The difference between the two is how the person being evicted initially gained possession of the property. Forcible entry and detainer – the initial entry was illegal and the person refuses to surrender possession Forcible entry is: (1) an entry without the consent of the person in actual possession of the property; (2) an entry without the consent of a tenant at will or by sufferance; or (3) an entry without the consent of a person who acquired possession by forcible entry. TPC § (b). Forcible detainer – the initial entry was legal/lawful (tenant), but the person refuses to surrender possession. Forcible detainer if the person: (1) is a tenant or a subtenant willfully and without force holding over after the termination of the tenant's right of possession; (2) is a tenant at will or by sufferance, including an occupant at the time of foreclosure of a lien superior to the tenant's lease; or (3) is a tenant of a person who acquired possession by forcible entry. TPC § (a). More common than forcible entry and detainer

I. Eviction Process What is the first step in the eviction process?
Notice to Vacate – The landlord must make a written demand for possession. Section (b) requires a written demand for possession. A notice to vacate shall be considered a demand for possession as required under Section (b). TPC § (h).

Section 24.002(b) requires a written demand for possession.
A notice to vacate shall be considered a demand for possession as required under Section (b). TPC § (h). Use TAR’s Notice Terminating Right of Occupancy (TAR-2208).

I. Eviction Process How many days notice is a landlord required to provide? If the occupant is a tenant under a written lease or oral rental agreement, the landlord must give at least a 3 day written notice to vacate before filing suit unless the parties have contracted for a shorter/longer notice period in a written lease or agreement. TPC § (a). The TAR Residential Lease (TAR-2001) provides for a 1 day written notice. Section (a) applies if the occupant is a tenant under a written lease or oral rental agreement. If the occupant is a tenant at will or by sufferance, see Section (b). Section (a) applies to all eviction suits if the lease is silent on the number of days required. Also, the section applies to all grounds for eviction.

See P. 27B(1) of the TAR Residential Lease (TAR-2001).

I. Eviction Process How many days notice is a landlord required to provide? If the occupant is a tenant at will or by sufferance, the landlord must give at least a 3 day written notice to vacate before filing suit unless the parties have contracted for a shorter/longer notice period in a written lease or agreement. TPC § (b). Section (b) applies if the occupant is a tenant at will or by sufferance. Note: If you have a tenant that is receiving government assistance, you must give the tenant the notice required by that government program.

I. Eviction Process Tenancy at will v. Tenancy by sufferance
Tenancy at will – Terminable at the will of either party. Tenancy by sufferance – The tenant wrongfully holds over after termination of the tenancy. Section (b) applies if the occupant is a tenant at will or by sufferance. Tenant at will – Tenancy of no stated duration that lasts as long as both parties desire. Either party can terminate at any time…without notice 5 ways to terminate (by operation of law): Death of either party Waste by the tenant Assignment by the tenant Transfer of title by landlord Lease by landlord to someone else Tenancy at sufferance – Tenant wrongfully remains in possession after the expiration of a lawful tenancy (holds over). Terminates when landlord evicts tenant or elects to hold tenant to another term.

I. Eviction Process How many days notice is a landlord required to provide? If the tenant acquired possession by forcible entry, the landlord must give at least a 3 day written notice to vacate before filing suit. TPC § (c) If the occupant is the person who gained possession by forcible entry, the person entitled to possession must give the occupant oral or written notice to vacate before the landlord files suit. TPC § (d). The notice to vacate may be to vacate immediately or by a specified deadline. Remember: Forcible entry occurs when the initial entry was unlawful/unauthorized. Forcible entry is: (1) an entry without the consent of the person in actual possession of the property; (2) an entry without the consent of a tenant at will or by sufferance; or (3) an entry without the consent of a person who acquire possession by forcible entry. TPC § (b). If the lease or applicable law require the landlord to give a tenant an opportunity to respond to a notice of proposed eviction, a notice to vacate may not be given until the period provided for the tenant to respond to the eviction notice has expired. TPC § (e). Examples: HUD subsidized leases How many days notice is a landlord required to provide if the lease is month-to-month? The length of the notice to vacate must correspond with the length of the rent-paying period. TPC § However, this is inapplicable if: (1) the parties have agreed otherwise in writing; (2) the parties have agreed in writing that no notice to terminate is required; or (3) one of the parties has breached the contract recognized by law.

I. Eviction Process How must the notice to vacate be delivered?
in person or by mail TPC § (f) Note: Constables cannot deliver a notice to vacate.

I. Eviction Process In Person includes:
Personal delivery to the tenant or any person residing at the premises who is 16 years of age or older or Personal delivery to the premises and affixing the notice to the inside of the main entry door TPC § (f)

I. Eviction Process By mail:
Notice by mail may be by regular mail, by registered mail, or by certified mail, return receipt requested, to the premises in question. TPC § (f)

I. Eviction Process Best Practice:
If notice is delivered by mail, send the notice by certified mail, return receipt requested. Why? The notice period is calculated from the day on which the notice is delivered. TPC § (g)

I. Eviction Process What if the dwelling has no mailbox and affixing the notice to the inside of the main entry door is impossible? You may securely affix the notice on the outside of the main entry door. TPC § (f) If the dwelling has no mailbox and has a keyless bolting device, alarm system, or dangerous animal that prevents the landlord from entering the premises to leave the notice to vacate on the inside of the main entry door, the landlord may securely affix the notice on the outside of the main entry door. TPC § (f)

I. Eviction Process Can the notice to vacate include a demand that the tenant pay the delinquent rent or vacate the premises by the date and time stated in the notice? Yes, if the landlord has given the tenant a prior written notice or reminder that rent is due and unpaid. TPC § (i). Use TAR’s Late Notice or Notice of Other Breach of Lease (TAR-2209) as the prior written notice.

Use TAR’s Late Notice or Notice of Other Breach of Lease (TAR-2209) as the prior written notice.

I. Eviction Process What is the second step in the eviction process?
Filing Suit – File an eviction complaint and pay filing fee If the tenant fails to vacate the premises, you must file an eviction complaint in JP court. Texas Rules of Civil Procedure will be addressed.

I. Eviction Process Where do you file an eviction suit?
In a justice court in the precinct where the property is located TPC § Justice courts in the precinct in which the real property is located has jurisdiction in eviction suits. Again, remember eviction suits include forcible entry and detainer and forcible detainer suits. TPC §

I. Eviction Process Justice Courts
Justice courts have original jurisdiction of cases of forcible entry and detainer. TPC § (a)(2). The jurisdictional limit was raised to include amounts in controversy up to $10,000, including rent, damages, and attorney’s fees. TPC § (a)(1).

I. Eviction Process The Complaint:
What are the requirements for the complaint? The complaint must describe the lands, tenements or premises, the possession of which is claimed, with sufficient certainty to identify the same, and it shall also state the facts which entitled the complainant to the possession and authorize the action under Sections of the Texas Property Code. Tex. R. Civ. P. 741. The complaint must describe the premises and the facts supporting the complainant's claim for possession. Tex. R. Civ. P The court should have pre-printed eviction complaint forms. The complaint can be signed by the owner's property manager as the owner’s agent. Holloway v. Sims,32 S.W.2d 673 (Tex. Civ. App. 1930). Important: The eviction complaint should list all known addresses of the defendant including work addresses. Sections are the eviction statutes.

I. Eviction Process Possession Bond:
The party aggrieved may, at the time of filing his complaint, or thereafter prior to final judgment in the justice court, execute and file a possession bond to be approved by the justice in such amount as the justice may fix as the probably amount of costs of suit and damages which may result to the defendant in the event that the suit has been improperly instituted, and conditioned that the plaintiff will pay defendant all such costs and damages as shall be adjudged against plaintiff. Tex. R. Civ. P. 740. Filing a bond for possession will accelerate the eviction process by 5 days. File it when the evition complaint is filed. When the tenant does not demand that trial be held in the 6 day period and does not file a counterbond, the landlord can get possession immediately after the eviction judgment is entered by the justice instead of having to wait 5 more days. When the tenant demands the that the trial be held w/in the 6 days of date of service or when the tenant files a counterbond within the 6 day period, the justice must conduct a trial and no writ of possession can be issued until 5 days after the trial. The defendant shall be notified by the justice court that plaintiff has filed a possession bond. Such notice shall be served in the same manner as service of citation and shall inform the defendant of all of the following rules and procedures: (a) Defendant may remain in possession if defendant executes and files a counterbond prior to the expiration of six days from the date defendant is served with notice of the filing of plaintiff's bond. Said counterbond shall be approved by the justice and shall be in such amount as the justice may fix as the probable amount of costs of suit and damages which may result to plaintiff in the event possession has been improperly withheld by defendant; (b) Defendant is entitled to demand and he shall be granted a trial to be held prior to the expiration of six days from the date defendant is served with notice of the filing of plaintiff's possession bond; (c) If defendant does not file a counterbond and if defendant does not demand that trial be held prior to the expiration of said six-day period, the constable of the precinct or the sheriff of the county where the property is situated, shall place the plaintiff in possession of the property promptly after the expiration of six days from the date defendant is served with notice of the filing of plaintiff's possession bond; and (d) If, in lieu of a counterbond, defendant demands trial within said six-day period, and if the justice of the peace rules after trial that plaintiff is entitled to possession of the property, the constable or sheriff shall place the plaintiff in possession of the property five days after such determination by the justice of the peace. Tex. R. Civ. P. 740.

I. Eviction Process May a suit for rent be joined with an eviction suit? Yes, if the suit for rent is within the jurisdiction of the JP court. Tex. R. Civ. P The judgment amount for rent must be within the jurisdiction of the justice court. The jurisdictional limit of JP courts is $10,000, including attorney’s fees. Tex. R. Civ. P. 738. The court may enter a a judgment for possession and a judgment for unpaid rent. If the amount for rent and attorney’s fees exceeds $10,000, you must sue in a separate suit in county court, which has jurisdiction over cases involving more than $10,000.

I. Eviction Process The Citation:
Once an eviction complaint has been filed with the JP court, the Justice will issue a citation commanding the defendant (tenant) to appear at a certain time and place, not more than 10 days nor less than 6 days from the date of service of the citation. The citation shall inform the parties that, upon timely request and payment of a jury fee no later than 5 days after the defendant is served with citation, the case shall be heard by a jury. Tex. R. Civ. P. 739. The citation is the notice to the tenant that you are attempting to evict him.

I. Eviction Process The Citation must include certain notices:
FAILURE TO APPEAR FOR TRIAL MAY RESULT IN A DEFAULT JUDGMENT BEING ENTERED AGAINST YOU. SUIT TO EVICT. THIS SUIT TO EVICT INVOLVES IMMEDIATE DEADLINES. CALL THE STATE BAR OF TEXAS TOLL-FREE AT TEXBAR IF YOU NEED HELP LOCATING AN ATTORNEY. IF YOU CANNOT AFFORD TO HIRE AN ATTORNEY, YOU MAY BE ELIGIBLE FOR FREE OR LOW-COST LEGAL ASSISTANCE. TPC § In a suit to recover possession of the premises, whether or not unpaid rent is claimed, the citation required by Rule 739, Texas Rules of Civil Procedure, must include the following notice to the defendant: FAILURE TO APPEAR FOR TRIAL MAY RESULT IN A DEFAULT JUDGMENT BEING ENTERED AGAINST YOU. TPC § (c). In a suit described by Subsection (c), the citation required by Rule 739, Texas Rules of Civil Procedure, must include the following notice to the defendant on the first page of the citation in English and Spanish and in conspicuous bold print: SUIT TO EVICT. THIS SUIT TO EVICT INVOLVES IMMEDIATE DEADLINES. CALL THE STATE BAR OF TEXAS TOLL-FREE AT TEXBAR IF YOU NEED HELP LOCATING AN ATTORNEY. IF YOU CANNOT AFFORD TO HIRE AN ATTORNEY, YOU MAY BE ELIGIBLE FOR FREE OR LOW-COST LEGAL ASSISTANCE. TPC § (d). Be aware of this language.

I. Eviction Process Who may serve a citation in an eviction suit?
Only a sheriff or constable may serve a citation in an eviction suit unless otherwise authorized by a court order. Tex. R. Civ. P. 536a. The citation commands the defendant (tenant) to file a written answer with the court.

I. Eviction Process Service of Citation:
The officer shall execute the citation by delivering a copy to the defendant or by leaving a copy with some person over the age of 16, at his usual abode, at least 6 days before the return day; and on or before the day assigned for trial he shall return the citation, with his action written, to the justice who issued the citation. Tex. R. Civ. P. 742. The constable can serve the citation on any person 16 at the tenant's home.

I. Eviction Process What if the constable is unsuccessful in serving the citation? Alternative service of process may be available In order to use alternative service, complainant must list in the eviction complaint all home and work addresses of the defendant known to the person filing the complaint. Tex. R. Civ. P. 742a Alternative service allows for service when the tenant is in jail. In order to take advantage of alternative service, you must list in the eviction complaint all known addresses of the tenant. Tex. R. Civ. P. 742a. If the officer is unsuccessful in serving the citation, the officer shall no later than 5 days after receiving the citation execute a sworn statement that the officer has made diligent efforts to serve the citation on at least 2 occasions at all addresses of the defendant in the county where the premises are located as may be shown on the eviction complaint, stating the times and places of attempted service. The sworn statement shall be filed by the officer with the justice who shall promptly consider the sworn statement of the officer. The justice may then authorize service according to the following: (a) The officer shall place the citation inside the premises by placing it through a door mail chute or by slipping it under the front door; and if neither method is possible or practical, the officer shall securely affix the citation to the front door or main entry to the premises. (b) The officer shall that same day or the next day deposit in the mail a true copy of such citation with a copy of the sworn complaint attached thereto, addressed to defendant at the premises in question and sent by first class mail; (c) The officer shall note on the return of such citation the date of delivery under (a) above and the date of mailing under (b) above; and (d) Such delivery and mailing to the premises shall occur at least six days before the return day of the citation; and on or before the day assigned for trial he shall return such citation with his action written thereon, to the justice who issued the same. It shall not be necessary for the aggrieved party or his authorized agent to make request for or motion for alternative service pursuant to this rule. Tex. R. Civ. P. 742a.

I. Eviction Process The cause shall be docketed and tried as other cases. If the defendant shall fail to enter an appearance upon the docket in the justice court or file answer before the case is called for trial, the allegations of the complaint may be taken as admitted and judgment by default entered accordingly. The justice shall have authority to issue subpoenas for witnesses to enforce their attendance, and to punish for contempt. Tex. R. Civ. P. 743. The court will set your court date. If the defendant fails to enter an appearance or file an answer before the case is called for trial, a default judgment is entered. Tex. R. Civ. P. 743. The court shall notify a tenant in writing of a default judgment for possession by sending a copy of the judgment to the premises by first class mail not later than 48 hours after the entry of the judgment. TPC § (c). Jury - Any party shall have the right of trial by jury, by making a request to the court on or before five days from the date the defendant is served with citation, and by paying a jury fee of five dollars. Upon such request, a jury shall be summoned as in other cases in justice court. Tex. R. Civ. P. 744.

I. Eviction Process Postponement
For good cause shown, supported by affidavit of either party, the trial may be postponed not exceeding six days. Tex. R. Civ. P. 745.

I. Eviction Process What is the third step in the eviction process?
Going to court – presentation of your case

I. Eviction Process Representation by Agents
In eviction suits for nonpayment of rent or holding over, parties may represent themselves or be represented by their authorized agents in justice court. TPC § Tex. R. Civ. P. 747a The property owner may represent himself or he may be represented by his authorized agent (who need not be an attorney). As a property manager, you can represent the owner in JP court. Bring a copy of the property management agreement to evidence your agency relationship.

I. Eviction Process The only issue shall be right to actual possession. Tex. R. Civ. P. 746. Exception: the issue of unpaid rent in the eviction suit Tex. R. Civ. P. 738 Remember: The only issue that can be addressed is the right to possession. You cannot raise the issue of damages, civil penalties, or non-repairs. The only exception is raising the issue of unpaid rent. Tex. R. Civ. P. 738. If no jury is demanded by either party, the justice shall try the case. If a jury is demanded by either party, the jury shall be empaneled and sworn as in other cases; and after hearing the evidence it shall return its verdict in favor of the plaintiff or the defendant as it shall find. Tex. R. Civ. P. 747.

I. Eviction Process Going to court
Present the facts that support your case in chronological order Date the lease was executed Amount of rent owed Date the Notice to Vacate was delivered and method of delivery Present any evidence that will support your case Lease Notice to vacate Any other evidence Other Evidence - For nonpayment of rent, show evidence that the tenant has not paid their rent (payment history in the form of a ledger sheet).

I. Eviction Process Going to court Ask for:
Eviction Judgment (judgment for possession) Judgment for unpaid rent Court costs

I. Eviction Process What is the fourth step in the eviction process?
Writ of Possession

I. Eviction Process Judgment and Writ
If the judgment or verdict be in favor of the plaintiff, the justice shall give judgment for plaintiff for possession of the premises, costs, and damages; and he shall award his writ of possession. If the judgment or verdict be in favor of the defendant, the justice shall give judgment for defendant against the plaintiff for costs and any damages. No writ of possession shall issue until the expiration of five days from the time the judgment is signed. Tex. R. Civ. P. 748 If the judgment is in favor of the owner, the justice will give judgment for possession of the premises, costs, and damages. Tex. R. Civ. P. 748.

I. Eviction Process Writ of Possession
A landlord who prevails in an eviction suit is entitled to a judgment for possession of the premises and a writ of possession. TPC § (a). In this chapter, "premises" means the unit that is occupied or rented and any outside area or facility that the tenant is entitled to use under a written lease or oral rental agreement, or that is held out for the use of tenants generally. TPC § (a).

I. Eviction Process The writ of possession shall order the officer executing the writ to: post a written warning of at least 8-1/2 by 11 inches on the exterior of the front door of the rental unit notifying the tenant that the writ has been issued and that the writ will be executed on or after a specific date and time stated in the warning not sooner than 24 hours after the warning is posted; and when the writ is executed: deliver possession of the premises to the landlord; instruct the tenant and all persons claiming under the tenant to leave the premises immediately, and, if the persons fail to comply, physically remove them; instruct the tenant to remove or to allow the landlord, the landlord's representatives, or other persons acting under the officer's supervision to remove all personal property from the rental unit other than personal property claimed to be owned by the landlord; and place, or have an authorized person place, the removed personal property outside the rental unit at a nearby location, but not blocking a public sidewalk, passageway, or street and not while it is raining, sleeting, or snowing. TPC § (d) The Justice will enter the judgment and order the constable to post the 24-hour warning notice on the front door of the dwelling before exercising actual eviction. TPC § (d). The Writ of Possession allows for the constable to order everyone in the premises to leave. The landlord or a warehouse company may remove the tenant’s belongings. The landlord may place the belongings outside, but not on a public sidewalk, street, or parking area. TPC § (d). The landlord may recover expenses for removing, storing and selling the property if the lease authorizes this. The TAR Lease (TAR-2001) does under paragraph 16.

I. Eviction Process The Writ of Possession:
The writ of possession shall authorize the officer, at the officer's discretion, to engage the services of a bonded or insured warehouseman to remove and store, subject to applicable law, part or all of the property at no cost to the landlord or the officer executing the writ. TPC § (e). The officer may not require the landlord to store the property. TPC § (f). The writ of possession shall contain notice to the officer that under Section 7.003, Civil Practice and Remedies Code, the officer is not liable for damages resulting from the execution of the writ if the officer executes the writ in good faith and with reasonable diligence. TPC § (g). A sheriff or constable may use reasonable force in executing a writ under this section. TPC § (h). WAREHOUSEMAN'S LIEN (a) If personal property is removed from a tenant's premises as the result of an action brought under this chapter and stored in a bonded or insured public warehouse, the warehouseman has a lien on the property to the extent of any reasonable storage and moving charges incurred by the warehouseman. The lien does not attach to any property until the property has been stored by the warehouseman. (b) If property is to be removed and stored in a public warehouse under a writ of possession, the officer executing the writ shall, at the time of execution, deliver in person to the tenant, or by first class mail to the tenant's last known address not later than 72 hours after execution of the writ if the tenant is not present, a written notice stating the complete address and telephone number of the location at which the property may be redeemed. TPC § Also, see Sections , , and of the Texas Property Code.

I. Eviction Process Writ of Possession
If a bond for possession was filed, the plaintiff is entitled to immediate possession 6 days after service if the defendant fails to file a counterbond or demand early trial. If no bond was filed, the judge has to wait 5 days after judgment before the writ of possession is issued. Tex. R. Civ. P. 739, 748 A writ of possession may not be issued before the sixth day after the date on which the judgment for possession is rendered unless a possession bond has been filed and approved under the Texas Rules of Civil Procedure and judgment for possession is thereafter granted by default. TPC § (b).

I. Eviction Process Attorney’s Fees and Costs of Suit
If the written lease entitles the landlord to recover attorney’s fees, a prevailing landlord is entitled to recover reasonable attorney’s fees from the tenant. TPC § (b). If the written lease entitles the landlord or the tenant to recover attorney’s fees, the prevailing tenant is entitled to recover reasonable attorney’s fees from the landlord. TPC § (c). A prevailing tenant is not required to give notice in order to recover attorney’s fees. The prevailing party is entitled to recover all costs of court. TPC § (d). How may the landlord or the tenant recover attorney’s fees and court costs? See Section of the Texas Property Code.

See Paragraph 29 of the TAR Lease (TAR-2001).
The TAR Lease entitles the prevailing party to recover attorney’s fees and court costs.

I. Eviction Process Appeal
Either party may appeal from a final judgment in such case, to the county court of the county in which the judgment is rendered by filing with the justice within five days after the judgment is signed, a bond to be approved by said justice, and payable to the adverse party, conditioned that he will prosecute his appeal with effect, or pay all costs and damages which may be adjudged against him. Tex. R. Civ. P. 749 The justice shall set the amount of the bond to include the items enumerated in Rule Within five days following the filing of such bond, the party appealing shall give notice as provided in Rule 21a of the filing of such bond to the adverse party. No judgment shall be taken by default against the adverse party in the court to which the cause has been appealed without first showing substantial compliance with this rule. Tex. R. Civ. P. 749. A final judgment of a county court in an eviction suit may not be appealed on the issue of possession unless the premises in question are being used for residential purposes only. A judgment of a county court may not under any circumstances be stayed pending appeal unless, within 10 days of the signing of the judgment, the appellant files a supersedeas bond in an amount set by the county court. In setting the supersedeas bond the county court shall provide protection for the appellee to the same extent as in any other appeal, taking into consideration the value of rents likely to accrue during appeal, damages which may occur as a result of the stay during appeal, and other damages or amounts as the court may deem appropriate. TPC § Pauper’s Affidavt – See Rules 749a through See Sections –

File suit (eviction complaint)
I. Eviction Process Steps in the Eviction Process | Notice to Vacate File suit (eviction complaint) Going to court Writ of possession

II. Foreclosures Texas Law
If a building is purchased at a tax foreclosure sale or a trustee's foreclosure sale under a lien superior to the tenant's lease and the tenant timely pays rent and is not otherwise in default under the tenant's lease after foreclosure, the purchaser must give a residential tenant of the building at least 30 days' written notice to vacate if the purchaser chooses not to continue the lease. TPC § (b). TX Law - The purchaser would have to give the tenant at least 30 days written notice if the tenant was current on rent. Other states – Tenant’s rights would terminate following a foreclosure. The tenant is considered to timely pay the rent under this subsection if, during the month of the foreclosure sale, the tenant pays the rent for that month to the landlord before receiving any notice that a foreclosure sale is scheduled during the month or pays the rent for that month to the foreclosing lienholder or the purchaser at foreclosure not later than the fifth day after the date of receipt of a written notice of the name and address of the purchaser that requests payment. Before a foreclosure sale, a foreclosing lienholder may give written notice to a tenant stating that a foreclosure notice has been given to the landlord or owner of the property and specifying the date of the foreclosure. TPC § (b).

II. Foreclosures Protecting Tenants at Foreclosure Act of 2009
(a) In General- In the case of any foreclosure on a federally-related mortgage loan or on any dwelling or residential real property after the date of enactment of this title, any immediate successor in interest in such property pursuant to the foreclosure shall assume such interest subject to— the provision, by such successor in interest of a notice to vacate to any bona fide tenant at least 90 days before the effective date of such notice; and the rights of any bona fide tenant, as of the date of such notice of foreclosure— under any bona fide lease entered into before the notice of foreclosure to occupy the premises until the end of the remaining term of the lease, except that a successor in interest may terminate a lease effective on the date of sale of the unit to a purchaser who will occupy the unit as a primary residence, subject to the receipt by the tenant of the 90 day notice under paragraph (1); or without a lease or with a lease terminable at will under State law, subject to the receipt by the tenant of the 90 day notice under subsection (1), except that nothing under this section shall affect the requirements for termination of any Federal- or State-subsidized tenancy or of any State or local law that provides longer time periods or other additional protections for tenants. Title VII, P.L The Protecting Tenants at Foreclosure Act pre-empts state law requiring a 30-day notice to vacate. It does not affect State or local law that provides a longer time period. Protecting Tenants at Foreclosure Act – The tenancy survives foreclosure except when the purchaser is going to use the property as a primary residence. In effect from 2009 to The Dodd Frank Act extended it from 2012 to 2014. Bona Fide Lease or Tenancy- For purposes of this section, a lease or tenancy shall be considered bona fide only if— (1) the mortgagor or the child, spouse, or parent of the mortgagor under the contract is not the tenant; (2) the lease or tenancy was the result of an arms-length transaction; and (3) the lease or tenancy requires the receipt of rent that is not substantially less than fair market rent for the property or the unit’s rent is reduced or subsidized due to a Federal, State or local subsidy.

The purchaser of a foreclosed property must allow the tenant to remain in the property until the end of the lease. Exception – The purchaser must give at least 90 days notice if: if the lease is on a month-to-month status or if the purchaser intends to use the property as his primary residence. Section 8 Tenants – The “immediate successor in interest” must permit a Section 8 tenant to remain in the property for the remainder of the lease and the new owner assumes any existing Section 8 housing assistance contracts. Section 703.

What does the Act cover? Federally-related mortgage loans Any dwelling or any residential property Single family (1-4 units) and multifamily (5 or more units) Information obtained from

II. Foreclosures In the event of a foreclosure:
Refer to Paragraph 4I of the Residential Leasing and Property Management Agreement (TAR-2201). Provide the tenant with the General Information for Tenant of Property Facing Foreclosure (TAR-2220).

Paragraph 4I of the TAR Residential Leasing and Property Management Agreement (TAR-2201) provides the property manager with guidance in the event of a foreclosure.

The TAR General Information for Tenant of Property Facing Foreclosure (TAR-2220) should be provided to the tenant in the event of a foreclosure. It instructs the tenant to continue paying rent to prevent forfeiture of their security deposit.

Questions & Answers Q1: What if the dwelling has no mailbox and a dangerous animal prevents you from delivering the notice to vacate in person? TPC § (f)

Questions & Answers A1: If the dwelling has no mailbox and a dangerous animal prevents you from entering the premises to leave the notice to vacate, you may securely affix the notice on the outside of the main entry door. TPC § (f). TPC § (f) This applies if the dwelling has no mailbox and has a keyless bolting device, or an alarm system. TPC § (f).

Questions & Answers Q2: If the constable is unable to serve the citation on the tenant, may alternative service be utilized? TPC § (f)

Questions & Answers A2: Alternative service may be utilized if the eviction complaint lists all home and work addresses of the tenant which are known to the person filing the eviction complaint. It is not necessary for the aggrieved party or his authorized agent to make request for or motion for alternative service pursuant to this rule. Tex. R. Civ. P. 742a. TPC § (f) If the officer receiving such citation is unsuccessful in serving such citation under Rule 742, the officer shall no later than five days after receiving such citation execute a sworn statement that the officer has made diligent efforts to serve such citation on at least two occasions at all addresses of the defendant in the county where the premises are located as may be shown on the sworn complaint, stating the times and places of attempted service. Such sworn statement shall be filed by the officer with the justice who shall promptly consider the sworn statement of the officer. The justice may then authorize service according to the following: (a) The officer shall place the citation inside the premises by placing it through a door mail chute or by slipping it under the front door; and if neither method is possible or practical, the officer shall securely affix the citation to the front door or main entry to the premises. (b) The officer shall that same day or the next day deposit in the mail a true copy of such citation with a copy of the sworn complaint attached thereto, addressed to defendant at the premises in question and sent by first class mail; (c) The officer shall note on the return of such citation the date of delivery under (a) above and the date of mailing under (b) above; and (d) Such delivery and mailing to the premises shall occur at least six days before the return day of the citation; and on or before the day assigned for trial he shall return such citation with his action written thereon, to the justice who issued the same. It shall not be necessary for the aggrieved party or his authorized agent to make request for or motion for alternative service pursuant to this rule. Tex. R. Civ. P. 742a.

Questions & Answers True or False
Q3: If a property is in foreclosure, the purchaser must give the tenant 30 days’ written notice to vacate. TPC § (f)

Questions & Answers A3: False. The Protecting Tenants at Foreclosure Act pre-empts any State or local law unless that law provides a longer time period or additional protections for the tenant. The Act requires the purchaser of a foreclosed property to allow the tenant to remain in the property until the end of the lease with limited exceptions. TPC § (f)

TAR Forms The following TAR Forms are available for member use only:
Residential Lease (TAR-2001) Notice Terminating Right of Occupancy (TAR-2208) Late Notice or Notice of Other Breach of Lease (TAR- 2209) Notice to Tenant of Change in Management and Accountability for Security Deposit (TAR-2210) General Information for Tenant of Property Facing Foreclosure (TAR-2220)

Thank you Thanks for your participation in our 8th PM Webinar!
Future Webinar Oct. 19 Questions? Contact the Legal Hotline 800/ You can download this presentation by visiting the Property Management Page. View the Texas Property Code. Give us your feedback! Send to:

Property Management Webinar Series Evictions & Foreclosures Instructed by Kinski Leuffer, Associate Counsel August 17, 2011.

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Property Management Webinar Series Evictions & Foreclosures Instructed by Kinski Leuffer, Associate Counsel August 17, 2011.

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