Why do people lose eviction cases when tenants owe rent?
I tell people all the time that just because a tenant owes rent they do have legal remedies themselves to stop or delay an eviction. That’s why it’s very important to not attempt an eviction if you don’t have all the facts. Here is a short list of why eviction suits are dismissed even though the tenant owes rent. There are two types of defenses a tenant may use. Procedural or substantive.
Defective notice to vacate – 99 out of 100 eviction notices I see from owners is wrong on some level. I’m not saying they would lose, but I am saying there are key elements to the eviction notice that need to be included and if one is missing I consider it a bad eviction notice. I WILL NOT use a previous eviction notice if I find flaws. I recommend starting over. There have been a couple of cases I have taken when court dates were already involved and I still won the case. I just got really lucky those days and had judges that were not on their game in my opinion. It was also to my advantage that the tenant didn’t show up. If the tenant had shown up I doubt I would have won the case.
Oral Notice – Real simple you can’t give verbal notice to vacate. Must be in writing and delivered properly.
Eviction Suite filed too soon – I will never forget I was going to a court in Arlington with a new judge. I asked two property majors what the judge’s pet peeves were because they frequent that court. I listened carefully to several cases and knew I had the case won. BOTH of the other people lost their cases. One person had 14 apartment cases and the other had 2 cases. Reason for dismissal was they had filed the eviction suit one day too early.
Improper delivery – About half the owners I see in court lose their cases by how they did or didn’t deliver their eviction notice. There are guidelines, but keep in mind that each judge may have their own set of rules outside of what the property code states. This is where you have to be tactical and very smart when doing evictions in those courts.
Premature notice to vacate – Again, many jump the gun and want to start the process fast, but it’s better to add days then take away in the legal process of an eviction.
Failure to give a tenant an opportunity to cure or correct – Your lease and property code determines many provisions you can and can’t do. You have to follow both your lease and the property code to be in compliance.
Substantive defenses include waiver, retaliation, discrimination, landlord caused the tenant to default and defective notices. I will briefly give info on a couple of these. A waiver could be when I tenant believes they don’t owe the rent because they repaired something you should have repaired. I landlord can cause default according to some judges by charging extravagant late fees thus not being able to catch up with the actual rent. I’ve seen all of these dismissals in actions when landlord and property managers have faced a judge. I am noticing more judges taking pictures of items that have not been repaired into consideration which has not been an issue before, but clearly more judges are tired of landlords not maintaining the property.