Laws governing the eviction of a residential tenant vary from state to state and are usually located in a state’s statutes. A tenant generally may be evicted from leased residential premises (a house or apartment) for significant violations of the lease agreement or state laws governing residential landlord-tenant relationships. The leading cause for eviction of residential tenants is the failure to pay the rent on time, as provided by the lease agreement.
Although laws vary from state to state, a landlord will often begin the eviction process based on a tenant’s failure to timely pay the rent by sending the tenant a notice to pay rent or quit—also known as an eviction notice or notice to vacate due to late rent. A notice to pay rent or quit is a written letter demanding a tenant who is late paying rent (1) pay the rent by a certain date or (2) quit (leave or vacate) the premises. Depending on the state’s laws and the written lease agreement, this notice may be attached to the tenant’s front door in a conspicuous manner.
Eviction proceedings do not mean that a tenant will immediately be removed from their home. Before a landlord can obtain a writ of possession—which is when a constable will remove a tenant's property from the rental—there are many possible steps in the process that each take a certain amount of time.
The eviction process and the terminology used may vary from state to state, but the process typically includes these steps:
• Step 1: Notice to Vacate. The landlord must give the tenant at least 3 days to move out before they can file an eviction suit, though it could be shorter or longer according to the lease
• Step 2: Filing of Eviction Suit. The eviction hearing cannot take place for a certain number of days after the petition is filed.
• Step 3: Judgment. Once a judgment has been issued, no further action can take place for a certain number of days to give the parties the opportunity to appeal.
• Step 4 (optional): Appeal. If the tenant files an appeal, the hearing cannot take place for at least a certain number of days.
• Step 5: Writ of Possession. Once there is a final judgment, the landlord can ask the judge for a writ of possession. The constable must post a 24-hour notice before "executing the writ" and removing the tenant's property from the rental.
Types of Lawsuits to Evict a Tenant
There are generally two types of lawsuits to evict a tenant—a forcible detainer, and a forcible entry and detainer. A “detainer” is someone who is wrongfully holding or withholding the return of property. A landlord who wants to evict a tenant will file a forcible detainer lawsuit. And a property owner who wants to evict a trespasser who never had a legal right to occupy the property will file a forcible entry and detainer lawsuit (action).
In many states the justice court or small claims court has jurisdiction to hear cases of forcible entry and detainer. The only issue to be decided in a forcible detainer action is which party has the right to immediate possession of the property. Where a claimed right of possession necessarily requires resolution of a title dispute, the justice court or small claims court may lack jurisdiction.
The only issue in a forcible detainer action is the right to actual possession of the premises. Such an action is intended to be a speedy, simple, and inexpensive means to obtain immediate possession of property.
The judgment in a forcible detainer action is a final determination only of the right to immediate possession; it is not a final determination of whether the eviction is wrongful or whether the tenant's continued possession was a trespass.
Holdover Tenants
A tenant who continues to occupy leased premises after expiration or termination of its lease is a holdover tenant. The status and rights of a holdover tenant, however, differ depending on whether the tenant becomes a tenant at will or a tenant at sufferance.
A tenant at will is a holdover tenant who holds possession with the landlord's consent but without fixed terms (as to duration or rent). Because tenants at will remain in possession with their landlords' consent, their possession is lawful, but it is for no fixed term, and the landlords can put them out of possession at any time.
By contrast, a tenant at sufferance is a tenant who has been in lawful possession of property and wrongfully remains as a holdover after the tenant's interest has expired. The defining characteristic of a tenancy at sufferance is the lack of the landlord's consent to the tenant's continued possession of the premises. With the owner's consent, the holdover tenant becomes a tenant at will; without it, a tenant at sufferance.
A lease agreement may provide that its terms continue to apply to a holdover tenant. But if, as here, the lease does not address the issue, and if the parties do not enter into a new lease agreement, the parties' conduct will determine whether the holdover tenant becomes a tenant at will or a tenant at sufferance. Under the common law holdover rule, a landlord may elect to treat a tenant holding over as either a trespasser—that is, a tenant at sufferance—or as a tenant holding under the terms of the original lease—that is, a tenant at will.
Thus, an implied agreement to create a new lease using the terms of the prior lease may arise if both parties engage in conduct that manifests such intent. If the tenant remains in possession and continues to pay rent, and the landlord, having knowledge of the tenant's possession, continues to accept the rent without objection to the continued possession, the tenant is a tenant at will, and the terms of the prior lease will continue to govern the new arrangement absent an agreement to the contrary.
The mere fact that the tenant remains in possession, however, is not sufficient to create a tenancy at will; unless the parties' conduct demonstrates the landlord's consent to the continued possession, the tenant is a tenant at sufferance.
In Texas, the eviction process for residential tenants typically begins with the landlord providing a 'notice to vacate' due to reasons such as non-payment of rent. The notice period is usually three days unless the lease specifies a different duration. If the tenant fails to comply, the landlord may file an eviction suit in the appropriate court, often a justice court. The court will then schedule a hearing, and if the landlord prevails, a judgment is issued. The tenant has the opportunity to appeal the judgment within a specified timeframe. If no appeal is filed or the appeal is unsuccessful, the landlord can obtain a 'writ of possession' to have the tenant and their belongings removed from the property by a constable, who must provide a 24-hour notice before executing the writ. Texas law distinguishes between 'forcible detainer' actions, which address the right to possession without title disputes, and 'forcible entry and detainer' actions, typically involving a trespasser without legal right to occupy the property. Holdover tenants, those who stay beyond their lease term, can be considered tenants at will if the landlord consents to their continued occupancy without a fixed term, or tenants at sufferance if they remain without the landlord's consent. The conduct of both parties will determine the status of a holdover tenant when the lease does not specify terms for holding over.
