Eviction laws in Texas can be complicated, and the language used can easily confuse those who are not familiar with them. Landlords seeking to evict tenants must proceed with knowledge of what is lawful and unlawful in dealing with tenancy.
If you’re a landlord who’s considering evicting a tenant, look into these two terms: “forcible entry and detainer” and “forcible detainer.” According to state law, they are not interchangeable, and each is used in distinct circumstances.
- Forcible entry and detainer – Under Section 24.001 of the Texas Property Code, this pertains to a person entering somebody else’s real property without authority or by force and refusing to yield possession of said property upon demand. This usually involves:
- Entry without gaining consent from the property owner.
- Entry without gaining willing consent from the rightful tenant or by sufferance.
- Entry without gaining consent from the person in rightful possession through forcible entry.
- Forcible detainer – Under Section 24.002 of the Texas Property Code, this pertains to a person refusing to give up possession of real property upon demand if the person is:
- A tenant who refuses to leave after the termination of his or her right of possession.
- A tenant at will or by sufferance.
- Someone’s tenant who acquired possession through forcible entry.
This statute states that demand for possession should be conveyed in writing by the person who’s entitled to be in possession of the property, complying as well with the requirements for issuing a notice to vacate.
How Does the Distinction Apply in Evictions?
As confusing as the terms may be, the distinction is really quite simple. “Forcible entry and detainer” applies in the absence of a landlord-tenant relationship. This refers to a person who doesn’t have a valid lease on the rental property or a person who has no legal authority to be on the premises.
On the other hand, when a landlord wishes to end a lease agreement and have a tenant evicted, a “forcible detainer” action is what is used in the eviction process. Forcible detainer actions are often used in eviction cases involving:
- Nonpayment of rent.
- Holding over or staying in the rental unit past the exit date in the rental agreement.
- Violations of lease terms, e.g. using a commercial space as a dwelling, allowing pets inside, etc.
- Engaging in criminal activity while in the rental space.
Should You File a Forcible Detainer Action?
There are other possible reasons for eviction as well. It’s best that you get legal aid from a lawyer to find out if you’re eligible to file a forcible detainer action. If qualified, take note that you have to follow these steps:
- Allow the tenant the chance to cure the default and give him or her proper notice regarding this. In case the tenant has not paid rent or has violated a term of the agreement, landlord-tenant law obliges the landlord to provide the tenant a reasonable period in which to pay rent or make restitution accordingly.
- Send a written notice to vacate. If the tenant chooses not to correct the issue, the landlord has to give documented notice for the tenant to leave. In a commercial eviction case, three days is the typical period allowed for renters to move out of the property. If the lease agreement states a different length of time, e.g. ten-day notice, then the lease specification is upheld.
- Provide the tenant time to respond to the eviction notice, especially if this is detailed in the lease. Commercial leases usually contain a provision for the tenant’s opportunity to respond.
- File action. With notices and response time provided, the landlord can finally file the forcible detainer action if the tenant refuses to vacate. This signifies the court’s approval of the landlord’s move to evict the tenant.
It goes without saying that the landlord has to show cause for eviction, e.g. proof that the renter owed rent payment, that the terms of the lease have been violated, or that the lease itself has expired and the landlord has opted not to renew it. Keep in mind that evictions and forcible detainer actions may not be done for discriminatory reasons.
Considering a Forcible Detainer Action? Contact an Eviction Lawyer Today!
If you want to fix the problem with your tenant, you best consult an eviction attorney for advice and legal assistance when you do decide to take action. For legal help on any issue or legal process involving landlords and tenants, call us at Girling Law to schedule a consultation with an experienced lawyer for landlords.