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. Show 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.
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:
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:
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.
A Forcible Entry and Detainer, or FED, is an action a property owner or a landlord can take when an existing occupant refuses to leave after being given appropriate notice. The laws governing FEDs vary from state to state and are different for residential and non-residential properties. If a tenant refuses to leave a property within the typical five to seven days after receiving an appropriate eviction notice, the landlord or property owner may file an FED. The court will then hold a hearing to determine if the occupant has the right to possession. If the court finds that the occupant does not have this right, the court will uphold the landlord or owner’s right to regain possession of the property. When Is Forcible Entry and Detainer Used?This type of legal action can move quickly through the court system. Also called unlawful detainer cases, FEDs typically are used in one of the following scenarios:
What Are the Steps to Filing a Forcible Entry and Detainer?Before initiating an FED, a landlord must closely follow local eviction laws. For example, a landlord cannot evict a tenant without giving them the proper written eviction notice. If the tenant does not move out after the appropriate time stated in the eviction notice, then the landlord may proceed with filing an FED. The theory behind an FED is that the landlord or owner alleges the tenant has unlawful use and possession of the property. Therefore, the landlord/owner seeks the assistance of the court in removing the tenant from the property. In most jurisdictions, a judge makes the decision to rule in favor of the landlord/owner or the tenant after hearing the evidence in a court hearing. However, in some municipalities, a tenant is entitled to a jury trial if they ask for one. In these cases, a jury, rather than a judge, hears testimony and makes the decision of whether or not a tenant should be evicted. If the tenant does not attend a scheduled court hearing, the landlord will win the case. If the tenant does attend, the court will take into account any defenses the tenant may provide. What defenses are there for an FED?A tenant who feels the eviction process is unlawful must provide evidence to support their case. It may be wise for the tenant to have legal representation in the matter. A common defense is that the landlord did not give proper notice for the eviction or that the landlord is not following the terms of the lease agreement. Evidence for both parties could include copies of the signed lease agreement, copies of correspondence between landlord and tenant, photos, and testimony from other tenants. If the court rules in favor of the landlord, it may grant the landlord a monetary judgment for the rent money in question and related attorney fees and court expenses. Next, the court may grant a writ for possession of the premises. Typically issued within a few days after the court decision, the writ gives the tenant the opportunity to move out voluntarily. The landlord must wait this period of an additional few days for the tenant to move out. If the tenant still refuses to leave, then law enforcement officials will forcibly remove the tenant. It is unlawful for a landlord or property owner to remove a tenant forcibly. Helpful Resources: Iowa Judicial Branch - What is Forcible Entry and Detainer or FED? TexasEviction.com - What is Forcible Entry and Detainer Cornell Law - Unlawful Detainer Oregon Judicial Department - Residential Eviction A summary proceeding to recover possession of land that is instituted by one who has been wrongfully ousted from, or deprived of, possession. Forcible entry and detainer, one aspect of which is known as Unlawful Detainer, alludes to two separate misdeeds and two divergent remedies of statutory origin. The forcible intrusion into another person's peaceable possession constitutes one type of infraction. Even if it is unlawful, peaceable possession cannot be terminated by violence. In many jurisdictions, even the rightful owner is held liable for damages, which as provided by statutes are often multiple in nature, if he or she employs excessive force in ousting one in peaceful possession. In such instances, the offense involved is the force itself and not the actual dispossession. The second form of misdeed entails the initiation of legal proceedings by the rightful owner against a squatter without title or a tenant who declines to depart. Force in such instances might be inconsequential, figurative, or nonexistent. Damages are avoidable, but the restoration of the lawful owner to possession of the property by eviction of the defendant is also within the purview of the remedy. This remedy, which awards both damages and possession, resembles Ejectment, which also entails the recoupment of possession of property by the person entitled to it, but significant differences exist. In addition to historical dissimilarities, the summary nature of the forcible entry and detainer action is unlike the nature of an ejectment action. The trial and eviction can be accomplished within a few days after Service of Process. Statutes frequently provide, however, that the decision in forcible entry or unlawful detainer is not binding as to title. If title is seriously disputed, a second and more comprehensive suit in ejectment or Trespass is warranted. The forcible entry or unlawful detainer action is restricted to cases in which the plaintiff's right to possession is unequivocal, since summary proceedings would not be justified under any other circumstances. A minority of jurisdictions, however, limit the action to the eviction of those who have actually entered by force. A forcible entry suit, although burdensome in nature, functions not merely as a method of prompt relief but also affects a subsequent ejectment action. Since the Burden of Proof is imposed upon the plaintiff who has been dispossessed in the ejectment suit, in regard to his or her own paramount title, the issue of possession determined in the forcible entry suit affects the ultimate burden of proof. It would be inequitable to permit this to be manipulated by those who forcibly enter, or perhaps even by holdover tenants. The forcible entry action, in dispossessing the occupant where his or her title is patently invalid, influences the ejectment action by its principle that the plaintiff never prevails on the basis of the possessor's defective title, but must instead recover on the validity of his or her own title. The supposition that unlawful detainer involves possession and not title, whereas ejectment entails title, is somewhat inaccurate. Both ejectment and unlawful detainer actions are possessory in nature, and title is nearly always the basis of possessory rights. The differences in the two actions reside in the summary character of forcible entry, the restricted class of person against whom it can be instituted, and its lack of Res Judicata effect on title issues. These forcible entry and detainer, or summary eviction, statutes are primarily utilized by landlords attempting to regain possession of premises from recalcitrant tenants. The Supreme Court has upheld the validity of such statutes, regardless of the limited number of issues triable and the brief period between summons and trial. Further readingsKirschbaum, Stephen. 1996. "Prosecuting and Defending Forcible Entry and Detainer Actions." The Journal of the Kansas Bar Association 65 (September): 20. Sweetbaum, Alan, and E. James Wilder. 2000."Forcible Entry and Detainer: A Primer." Colorado Lawyer 29 (October): 89. West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved. |