Although a commercial tenant does not have the same statutory protections provided to residential tenants, there are still specific legal procedures, as outlined in the commercial lease and the Texas Property Code which are vital to a proper eviction process. Below is a rough outline of some considerations important in a commercial eviction:
The commercial lease provisions should be thoroughly reviewed to determine the grounds for an eviction. This review should include examining how and when the tenant defaulted, any grace periods or cure options available to the tenant, and remedies available to the landlord. Oftentimes these grace periods, cure options and remedies are different for each type of default within the same lease. The appropriate sections of the Texas Property Code should also be reviewed with regards to any statutory requirements imposed on the landlord.
The landlord should properly notify the tenant of the claimed default(s). Proper notice is a mandatory prerequisite for filing an eviction action. Texas Property Code Section 24.005 establishes a 3 day written notice requirement to vacate prior to filing suit, unless the parties have contracted in the lease for a different time period. There are certain instances in which the statutes may require more, less, or additional notices and procedures. For example, if the tenant is a holdover past the term of the lease, if the tenant is a tenant at will or by sufferance or if the occupant gained possession of the property by forcible entry.
File a proper forcible detainer action in the appropriate court. Most eviction proceedings in Harris and Montgomery County will be assigned to a JP Court associated with the address of the leased property. Once the complaint is filed the court will immediately issue a citation commanding the tenant to appear, which date will be between 6-10 days from the service of the citation. The defendant can respond in writing or by appearing on the court date. At the trial, the judge will hear all evidence and render a judgment. If the defendant fails to appear, the allegations in the complaint will likely be deemed admitted and a default judgment entered in favor of the landlord.
Request a writ of possession from the court, which will entitle the landlord to take possession of the property by evicting the tenant. Present the writ to the county sheriff and ask them to remove the tenant.
The landlord-tenant relationship is a complex and statutorily regulated relationship. Before commencing the eviction process, landlords and tenants should consult an attorney to confirm that the appropriate procedures have been taken and the appropriate notices given to insure a smooth eviction process. Real estate attorneys who represent landlords or tenants are able to diligently review and follow the proper procedures applicable to the situation.
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